Script 8 June 2012

1. Net Neutrality:
why it matters
Dr Chris Marsden
School of Law, University of Essex
SCRIPT 10th Anniversary,
Edinburgh 8 June 2012

2. Internet and the University of Essex
Universities invented Internet in 1968
UK (UCL) early partner of US institutions
Though Norway was first international link
Essex 9th in UK for Research (2001-8 RAE)
Top 20 global ‘universities under 50’
 With UEA, Sussex etc.
A Robbins university founded 1964
Wivenhoe just outside Colchester
Significant interaction with BT Labs (nearby)
Notably on computing, telecoms and users

3. Where? Wivenhoe near Colchester

4. Wivenhoe Park painted by Constable

5. Essex as a European University
Stansted Airport 33 miles
London by train 47 minutes

6. What matters?
• The future of the Internet
• The future of European
communications policy
• European consumers and citizens
• Monopoly and protection of
fundamental rights
• Competition

7. Back in 2007…

8. 8 8/9/2012

9. ‘Negative neutrality’
or
Net neutrality ‘lite’
9 8/9/2012

10. NN as microcosm of European telecoms policy failures
Because we get it wrong on all these levels:
1. We generalize from the particular
2. We pretend competition solves the
problem
3. We pretend to be technologically neutral
4. We regulate asymmetrically
5. We don’t provide effective protection for
consumers
6. We don’t protect freedom of expression
7. We don’t understand Internet innovation

11. Competition is not the answer
• Standard 1990s answer to 1980s
monopoly problem
• We are still in some Chicago School fantasy
• ‘American problem’ – so why US solution;-)
• All ISPs have incentives to block
• file-sharing and VOIP
• Naked DSL anyone?
• Why do we still have voice telephony?

12. Playing together?

13. Ofcom: ‘no formal complaints’
• BEREC (2010) Response to the
• European Commission’s consultation on the open
Internet and net neutrality in Europe,
• BoR (10)42
• Charlie Dunstone, Chairman, TalkTalk:
• “We shape traffic to restrict P2P users.
I get hate mail at home from people
when that means we restrict their ability
to play games.”

15. Ofcom International Conference, Nov 2006
“I’ve got 2 people that have said
they’re going to kill me
as a result of not allowing
them to play certain games.
From our point of view, it’s not about security, it’s
about trying to figure out what type of traffic it is.”

16. One size does not fit all
• Generalising from the particular
• Five MNOs in UK – one of which (3) acts for
consumer interest
• Swedish mobile cartels
• Berlusconi created specific Italian issues
• Romania has fibre and 450MHz 4G
• UK has no 4G nor any sign of it!

17. Technological neutrality?
• Mobile is not fixed!
• Cable is not DSL
• Why pretend that we can solve this in
a platform-neutral manner
• Architecture matters!

18. Competition as solution
• In whose definition?
• Third pipe
• Or as Martin Cave explained in 2009, 1.5 pipes!
• Two competing wholesale fixed
networks

19. Or in a picture…

20. Asymmetrical regulation
• Fixed incumbent regulated as SMP
• But problem is not retailers of that
wholesale network
• Why don’t we ex ante regulate?
• NOT cable monopolist
• NOR satellite/ISP combine
• Must carry
• Due prominence

21. Consumer law and redress
• What’s the problem?
• ‘Anecdote’ is not evidence
• Nor is ex post an effective remedy
• Ofcom in trouble on transparency and
switching
• Transparency like mobile pricing?
• Switching like: let them eat cake?

22. Prosumer Law
• I have made an extended argument
for prosumers to be protected
• Paper at ECPR Regulation &
Governance
• Exeter 27 June
• Book MIT Press 2013, with Ian Brown

24. ISPs as police?
24 8/9/2012

25. What innovation?
• Value chain analysis
• Problem – innovation at content-app-
services level
• Providing fibre is not innovation by ISPs!
• So whole basis of policy is flawed
• Do telecoms regulators understand the Internet?
• Are politicians ignorami?

26. Citizens’ rights
• ‘Internet’ is unrestricted
• Restriction is censorship
• Ed Vaizey’s nonsense comments
• Tim Berners Lee tells the truth
• La Rue (UNHRC) and Akdeniz (OSCE)
• It’s the right to communicate

27. Book launched
February 2010
100,000
downloads
first 2 months
Second
paperback
edition 2015
27 Check against delivery participants only