Introduction
Draft rules
Comment



Introduction

The Federal Telecommunications and Broadcasting Law establishes that the Federal Telecommunications Institute (IFT) may issue guidelines to regulate net neutrality under the following principles:

  • the free choice of users to access content, applications or services through any device without limits, restrictions or discrimination (free choice);
  • internet service providers (ISPs) cannot obstruct, interfere with, inspect, filter or discriminate against access to content, applications or services (non-discrimination);
  • user privacy and network security;
  • the transparency of information concerning services, traffic and network management;
  • traffic management to ensure the speed and quality of services without being anti-competitive;
  • maintenance of quality standards; and
  • the growth of new telecoms infrastructure.

Further, the Federal Telecommunications and Broadcasting Law sets out that ISPs must provide internet access in accordance with the capacity, speed and quality of service offered, irrespective of the content accessed and its origin and destination, as well as the equipment, services or applications used.

Draft rules

In December 2019, more than five years after the introduction of the Federal Telecommunications and Broadcasting Law, the IFT issued draft rules for public consultation to further regulate net neutrality in Mexico.

Under the draft rules, ISPs must establish traffic and network management policies which comply with the IFT's principles and publish them on their website. However, ISPs can temporarily implement policies that do not comply with the free choice and non-discrimination principles in the following cases:

  • where there is a verifiable security risk to the network or the privacy of final users;
  • cases of unusual network congestion (however, a distinction cannot be made between similar types of traffic);
  • national security or emergency situations provided by law;
  • when requested by the competent authorities; or
  • temporary requests by final users (unless it is a technical impossibility).

ISPs can allow the installation and use of terminal equipment by final users as well as offer differentiated services providing that they are not offered, sold or contracted as internet services which restrict content, applications or services. As regards differentiated services, ISPs may:

  • assume the costs of final users for the use of content, applications or services, subject to the top-up amount or capacity contracted under a plan; and
  • grant final users free access to content, applications or services, subject to the top-up amount or whether the user has internet access.

Further, ISPs can offer specialised services through specific network resources as long as they:

  • guarantee that they will not be detrimental to internet service access;
  • are offered under non-discriminatory conditions; and
  • do not reduce the quality and speed of traffic and imply payment from application, content or service providers to conduct said traffic.

ISPs must publish details online of each of their specialised or differentiated services and update the terms and conditions thereof. Further, ISPs that execute commercial agreements to provide specialised or differentiated services must file notifications with the IFT.

In any case, the IFT can temporarily or definitively suspend traffic and network management policies or any specialised or differentiated services harm competition and the free market.

Comment

The public consultation period will remain open until 6 March 2020, but there has been some criticism. Further discussions are anticipated following the end of the consultation period and the definitive rules are expected to be published in mid-2020. Nonetheless, the publication of draft rules to regulate net neutrality is a positive step which had been awaited by industry players and non-governmental organisations.

For further information on this topic please contact Federico Hernández Arroyo at Hogan Lovells BSTL by telephone (+52 55 5091 0000) or email ([email protected]). The Hogan Lovells website can be accessed at www.hoganlovells.com.