Net Neutrality, Internet Freedom, & The Future of Broadband Regulation Tom Struble, R Street Institute A presentation for the Runnymede Society, delivered at the University of British Columbia Peter A. Allard School of Law, Vancouver, BC, Canada, March 6th 2018

Proposed resolution for debate The repeal of Net Neutrality poses serious threats to innovation and consumer access in the United States, and Canada should pay heed. Proposed resolution for debate

What is Net Neutrality? A “shorthand for a system of belief about innovation policy.” Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. on Telecomm. & High Tech. L. 141, 144 (2003), http://goo.gl/fDalUr. “The idea, principle, or requirement that Internet service providers should or must treat all Internet data as the same regardless of its kind, source, or destination.” Merriam-Webster Unabridged Dictionary, http://goo.gl/AZQtCY. Generally, “some legal or regulatory restrictions on broadband Internet access services that include non-discrimination requirements above and beyond any that may be implied by existing antitrust law or FCC regulations.” FTC Staff Report, Broadband Connectivity Competition Policy, 1 n.2 (June 2007), https://goo.gl/Fd2MEC.

Understanding Broadband Discrimination Targets of Discrimination Methods of Discrimination Third-party devices E.g., modems, routers, PCs, handsets, set-top boxes, IoT, wearables, etc. Third-party services E.g., email, search, DNS, advertising, VoIP, over-the-top (OTT) video (including SVOD services, like Netflix, and vMVPD services, like Sling), etc. Network management Engineering (DSCP, QoS/QoE) Blocking/throttling/prioritization Interconnection pricing Economics (SNIP test, tariffs, public utilities v. common carriers v. essential facilities) Peering/transit/SLAs

Net Neutrality through the Years 2010 Open Internet Order 2015 Open Internet Order 2017 Restoring Internet Freedom Order Transparency No blocking No unreasonable discrimination Transparency No blocking No throttling No “paid prioritization” No unreasonable discrimination Transparency No unfair methods of competition No unfair or deceptive acts or practices

Rules v. Standards “Problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case- to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards.” SEC v. Chenery Corp., 332 U.S. 194, 202–03 (1947) (emphasis added).

Why Transparency + Flexible Standards Should Regulate Prioritization “It is worth noting that the Internet Protocol does specify a field in the header of IP packets known as the “differential service” field, meant to indicate some sort of priority. However, in the over thirty years since the widespread adoption of IP, no consensus has been reached about how edge devices should populate that field for use on the public Internet (as opposed to within private networks, such as a company’s LAN). As a result, traffic prioritization on the public Internet is almost nonexistent. The closest the Internet engineering community has come to a standard on prioritization is RFC 2474, which is a proposed standard last updated in 1998, and which has not seen widespread adoption. K. Nichols et al., Definition of the Differentiated Services Filed (DS Field) in the IPv4 and IPv6 Headers, THE INTERNET SOCIETY (Dec. 1998), https://tools.ietf.org/html/rfc2474.” Internet Engineers’ FCC Comments, WC Docket No. 17-108, 32 n.77 (July 7, 2017), https://goo.gl/pcxfrS.

The Future? Litigation? Regulation? Legislation? Already underway (briefing this summer, arguments next fall) State laws/EOs likely to be challenged Regulation? Formal enforcement possible, but unlikely, at least in near term FTC & FCC will likely more offer informal guidance to industry (reports, workshops, etc.) before bringing any enforcement actions Legislation? Multiple drafts introduced, but nothing with bipartisan support, so nothing likely to pass this year