On December 18, 2019 the Federal Telecommunications Institute published for public consultation the draft guidelines for traffic management and network administration (the “Net Neutrality Guidelines”) applicable to concessionaires and authorization holders that provide internet access service through public telecommunication networks.
The main objectives of the Net Neutrality Guidelines are to: i) guarantee that end-users have freedom of decision on the contents, applications and services to which they will have access, as well as knowledge on how their traffic is managed on the network; ii) grant legal certainty to the industry in terms of network neutrality, giving clarity on viable traffic management and network administration policies, as well as with respect to admissible business practices; iii) promote innovation in the sector through the use of more efficient technologies in the use of networks and in new commercial strategies; iv) favor the reduction of the digital divide, through commercial offers aligned with the traffic management and network administration policies authorized by the IFT; v) promote competitive conditions, and vi) encourage investment in networks for the provision of fixed and mobile Internet with higher quality and more coverage.
Article 145 of the Federal Telecommunications and Broadcasting Law entitles IFT to issue general guidelines on net neutrality, to ensure that concessionaires and authorization holders provide internet access service subject to principles of freedom of choice, non-discrimination, privacy, transparency and information, traffic management, quality and to encourage the sustained growth of telecommunications infrastructure. In this regard, the Net Neutrality Guidelines establish the possibility for Internet Access Service Providers (“ISPs”) to implement traffic management and network administration policies that are aimed at:
- ensure the speed and quality of the service contracted by end-users;
- preserve the integrity and security of the network; and
- promote commercial innovation, provided that the foregoing is subject to free choice and non-discriminatory treatment principles, and that the inviolability of private communications of end-users is preserved.
Scope of the Net Neutrality Guidelines
The Net Neutrality Guidelines establishes the possibility that ISPs offer differentiated services to end-users, such as zero rating and sponsored data - a practice that ISPs are currently carrying out, that consists of ISPs not charging end-users for the volume of data consumed for the use of specific applications - as well as specialized services to providers of content, applications and services, referring to specific network features and resources.
Particularly, the Net Neutrality Guidelines provide that, in case that differentiated services are provided, ISPs may offer them to end-users, as long as they guarantee their right to free choice of any content, application or service available on the Internet and offer them in non-discriminatory terms. Additionally, it raises the possibility that end-users can surf the internet even when they have consumed their data, as long as the costs generated by said consumptions are associated with a commercial offer of “sponsored data”, and that this offer is aimed at reducing the digital divide gap in the educational, financial and labor sectors, management of public services or development of new digital capabilities in end-users. Likewise, in the case of specialized services, it is proposed that ISPs can offer them as long as they guarantee that the provision is not detrimental to the internet access service and is granted under conditions of transparency. It is also proposed that traffic management policies can be consulted by end users in the internet portals of the service providers, emphasizing that they should be described in a detailed and clear manner. With this, end users will be able to navigate in an informed and safe way, exercising their right to freedom of choice over the contents, applications and services they access.
In general terms, the Net Neutrality Guidelines propose a regulatory approach aimed at establishing principles and policies of traffic management and network administration, under which the ISPs must provide their services, thereby allowing the market to decide which strategies are successful. Furthermore, it establishes that, in case of identifying actions against the Net Neutrality Guidelines or any competition and antitrust regulation, the IFT may intervene to conduct a case-by-case analysis from the regulatory or competition perspective.
Additionally, in accordance with international best practices, it is proposed that the Institute conduct a review of the guidelines in a period not exceeding three years.
The public consultation, which will be available for 45 business days (until March 6, 2020), is intended to collect the opinions of industry, academia, specialists and the general public about the elements to be considered by the IFT regarding traffic management policies and network administration and commercial practices that may be implemented by the concessionaires and authorization holders to provide internet access service, as well as the mechanisms that transparent such implementation. For these purposes, the public consultation is accompanied by a Regulatory Impact Analysis, an open questionnaire in the format to participate in the public consultation in which a series of questions of a technical nature are raised, as well as the “Study: Net Neutrality”, in which the interested parties will be able to know the analysis carried out by the Regulatory Policy Unit of the IFT.