The concept of net neutrality was first introduced by legal academic Tim Wu, in his paper “Network Neutrality, Broadband Discrimination” (2003), when discussing the potential for broadband discrimination. Net neutrality is a notion that believes Internet service providers (ISP’s) should treat the carriage of all data equally (DeNardis, 2014). The enacting of net neutrality into law would result in ISP’s being legally prohibited from providing certain clients with faster Internet connection than others (DeNardis, 2014). The notion has received much attention off the back of the US Federal Communications Commission’s (FCC) 2017 vote to repeal net neutrality legislation, this disbandment of said legislation has left many wondering whether such legislation is required in Australia, where it is not currently present.
The Concept of Net Neutrality
The premise of net neutrality is that ISP’s shouldn’t discriminate the carriage of certain data over others on grounds of certain software’s and platforms being utilised, monetary reimbursement or any socio-technical factor (Martin, 2018). To put it simply, it is the belief that the Internet should function to carry every users data equally. The main question of net neutrality is in regards to whether or not Internet providers should be un-able to preferentially treat the data of some client’s over others, if this said data were to be prioritised it could effect content including controversial or critical speech (particularly in regards to government regimes), pirated movies or indecent material (DeNardis, 2014). For example, after the FCC recently repealed net neutrality legislation, ISP Verizon could prioritise the carriage of Netflix data over YouTube or another competitor based on what each company was willing to pay. Although seemingly contradictory, ongoing Internet network management implementation and legislation entails the prioritising of some data over others so that sufficient speed and reliability can be provided, but this prioritisation is not specific to certain subject matters (DeNardis, 2014). Although, it can be traffic specific, for example a provider could carry audio or video over text, but it doesn’t prioritise certain users audio over another (DeNardis, 2014). Even though this practice doesn’t discriminate against certain data, present discussion in regards to net neutrality is also calling for greater transparency on this practice, which would allow for consumers to make more knowledgeable market choices. Communications professor and author Dr Laura DeNardis believes that the continuing debate in regards to net neutrality is going to relate to three topic areas: debate over the possibility of traffic specific discrimination, whether or not the differential treatment of mobile wireless versus wired broadband access is appropriate, and the role of government in supervising Internet access and provision (DeNardis, 2014).
The Historical Basis of Net Neutrality
FCC chairman Ajit Pai put his repealing of established net neutrality legislation down to “The Obama administration’s heavy handed regulations” (Pai cited in Bluey, 2017). This is an interesting statement from the chairman, because the Obama administration is not responsible for the enactment of net neutrality legislation. Tim Wu believes this repeal to be at odds with over 50 years of historical basis (Wu, 2017).
The concept of net neutrality and equal data carriage first came to relevance in 1971 after the Nixon administration noted that the data processing industry was on the verge of becoming a major player in the US economy as well as identifying that its significance would rise in the coming years (Wu, 2017). However, they identified that AT&T could monopolise this growing market, as it ran solely on AT & T’s lines. AT & T is known as a telecommunications common carrier, which is an institution that supplies the general public with wired and wireless communication services (Rouse, 2017). Under the Telecommunications Act (1934), regulatory bodies license common carriers as they serve the people (Rouse, 2017). This early notion of licensing common carriers was to make sure they don’t prioritise certain clients and members of the public over others (Rouse, 2017). The commission outlined that they were concerned that AT & T could favour their own data carriage over competitors on grounds of “discriminatory services, cross-subsidization, improper pricing of common carrier services, and related anticompetitive practices and activities” (Wu, 2017). As a result of these observations, the FCC enacted legislation to protect competitors from discrimination on data delivery by AT & T, these rules were known as the Computer Inquiries (Wu, 2017). One of the notable pieces of legislation from these inquires was the aim to protect the data on the network from the AT & T network carrying the data itself (Wu, 2017). This is widely renowned as the first legislation in regards to network neutrality.
Is it Relevant in Australia?
In Australia we currently don’t have any net neutrality legislation. However, the Australian Competition and Consumer Commission (ACCC) and the strong consumer laws enacted by the body (Schaffarczyk, 2014) regulate Internet delivery and carriage. Competition law and regulation academic Konstantinos Stylianou argues that bodies like the ACCC ensure that individuals get fair treatment from our telecommunications providers (2017), as opposed to having net neutrality legislation. He believes this to be a result of increased competition between ISP’S, giving greater protection against harmful principles such as throttling competitors connection and prioritising others based on remuneration (Stylianou, 2017). Although we have no specific net neutrality legislation put in place, regulation and consumer law enacted by the ACCC has ensured that said legislation is not required (Herron, 2018). Australia’s consumer law outlines that a service provided must “be fit for the purpose or give the results that you and the business had agreed to” and “be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage” (Australian Competition & Consumer Commission, 2010). This stipulates that if your ISP is not providing the service that was contractually agreed upon, then they could be open to fines (such as criminal penalties) and pecuniary penalties (Competition and Consumer Act, 2010). Another feature that makes net neutrality legislation redundant in Australia is the strong competition and variety of providers across the country. Due to Telstra’s ADSL network being available to its competitors, all Australian’s have a wide variety of choice in regards to which provider they use, and as a result can switch service providers easily if they believe the service to be not up to standard (Schaffarczyk, 2014). Although the National Broadband Network hasn’t been a resounding success, this choice is also available to those houses connected to the NBN, as they can choose from competing service providers once connected (Schaffarczyk, 2014). Legal academic Karl Schaffarczyk (2014) argues that as a result of this increased competition the Australian market has flourished and innovated in order to provide customers with a better service, and as a result gain greater market share. This monitoring by the Australian government has helped to stop anti-competitive behaviour amongst competitors, and has ensured neutral data delivery without enacting net neutrality legislation.
Universal Service Obligations and their potential application
An aspect of governance that ensures adequate service in telecommunications is the universal service obligations (USO) put in place by the Australian Communications & Media Authority (ACMA). However USO’s are only present in regards to mobile phones, not Internet. This responsibility is enacted in order to guarantee that payphones, telephone services and data carriage services are all attainable to the Australian people on an equitable basis (USO obligations, 2016). In Australia Telstra is responsible for USO, and as a result have to complete their obligations including service to those with disabilities (under the Disability Discrimination Act 1992), those with special needs and all other permitted priority customers (USO obligations, 2016). The Australian government announced the USO’s in regards to mobiles phones as they believed them to be an extremely important technology which all Australian’s should have access to. As the significance of mobile phones has risen in the past decade’s, that of the Internet has gone hand in hand, which begs the question, why aren’t these obligations extended to the Internet? Personally, I believe the significance of the Internet to be on par with that of mobile phones due to their similar connective capabilities, and as a result I think it would be wise for the government to enact USO’s in regards to the Internet. This would only increase the quality of data delivery to all parts of Australia, as the USO’s would ensure that Internet delivery services would have to provide a reliable product to the Australian consumer. The enacting of Internet service into a USO could increase the availability and quality of broadband across Australia, as is displayed in figure 3.
Although I believe internet governance and oversight is required to ensure a better experience for the user, that oversight doesn’t have to be specific net neutrality legislation, as has been displayed in Australia. As even though net neutrality legislation isn’t present this has not affected the standard of Internet provided. This is due to the strong consumer law enacted by the Competition and Consumer Act (2010), which is monitored by the ACCC, and the wide variety of service providers that are available for Australians to choose between. In her 2014 paper titled “The Turn to Infrastructure in Internet Governance”, Laura DeNardis argues that the rising privatisation of Internet governance threatens Internet freedom. Which displays why Internet governance is required, but in Australia, as displayed by the current system, that governance doesn’t have to be net neutrality legislation.
Australian Communications & Media Authority (2016, May 25). USO Obligations. Retrieved from https://www.acma.gov.au/Industry/Telco/Carriers-and-service-providers/Obligations/universal-service-obligation-obligations-i-acma
Australian Competition & Consumer Commission (2010). Consumer Guarantees. Retrieved from https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees
BBC News. (2017). What is net neutrality and how could it affect you? – BBC News [Video file]. Retrieved from https://www.youtube.com/watch?v=zq-2Yk5OgKc
Bluey, R. (2017, November 21). Q & A: FCC chairman explains why he’s ending Obama’s ‘heavy-handed Internet regulations’. The Daily Signal. Retrieved from https://www.dailysignal.com/2017/11/21/qa-fcc-chairman-explains-hes-ending-obamas-heavy-handed-internet-regulations/
Competition and Consumer Act 2010 (Austl.) Retrieved from https://www.legislation.gov.au/Details/C2011C00003
DeNardis, L. (2014). The Global war for Internet governance. New Haven: Yale University Press. doi: 10.12987/yale/9780300181357.001.0001
Denardis, L. Musiani, F. (2014, September 15). The Turn to Infrastructure in Internet Governance. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2730689
Fox Business (2017). FCC chairman: Repealing net neutrality will benefit the market [Video file]. Retrieved from https://www.youtube.com/watch?v=u9laGMO2IAM
Harron, A. (2018, June 28). What is net neutrality and how does it impact Australian’s in 2018? Compare. Retrieved from https://www.comparetv.com.au/review/net-neutrality-explained-australia/
Martin, F. (2018, September 4). ARIN2610 Internet Transformations, lecture 6, week 6: Governing the net [Lecture PowerPoint slides]. Retrieved from https://canvas.sydney.edu.au/courses/7516/pages/week-6-governing-the-internet?module_item_id=176785
Rouse, M. (2017, April). Common carrier. Tech Target. Retrieved from https://whatis.techtarget.com/definition/common-carrier
Schaffarczyk, K. (2014, January 28). Australia’s net neutrality lesson for the US. The Conversation. Retrieved from https://theconversation.com/australias-net-neutrality-lesson-for-the-us-22245
Stylianou, K. (2017). We don’t need strict net neutrality rules to keep the Internet fair. The Conversation. Retrieved from https://theconversation.com/we-dont-need-strict-net-neutrality-rules-to-keep-the-internet-fair-81144
Wu, T. (2003). Network Neutrality, Broadband Discrimination. Journal of Telecommunications and High Technology Law, Vol. 2, p. 141. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=388863
Wu, T. (2017, June 6). How the FCC’s net neutrality plan breaks with 50 years of history. Wired. Retrieved from https://www.wired.com/story/how-the-fccs-net-neutrality-plan-breaks-with-50-years-of-history/