Vodafone charges customers an additional fee to use Skype on smartphones, while T-Mobile prohibits subscribers from using Skype or “WhatsApp” in its terms and conditions, and KPN said last month it wanted to introduce additional charges. The European Commission and European Parliament have endorsed “network neutrality” guidelines but as yet have taken no legal action against operators that block or impose extra fees on consumers using services like Skype, the voice and video Internet service being acquired by Microsoft, and WhatsApp, a mobile software maker which is based in Santa Clara, California.
Network neutrality is a complicated issue, despite occasional efforts to paint it as a simple matter of content freedom. The Netherlands rules are heralded as a network neutrality move. In part, they are. Most fair minded people might agree that access providers should not be able to block use of lawful apps.
In the U.S. market, such rules prohibiting blocking of lawful apps, used in lawful ways, already are part of the Federal Communications Commission “Internet Freedoms” principles, which state, among other things, that users should be able to use all lawful applications.
There are at least two conceptually different issues involved here, and that's the complicated part. There is the issue of a user's ability to use a lawful application in a lawful way within the terms that the provider applies to broadband access services.
Then there is the separate issue of charging consumers additional amounts to use such lawful apps, within the context of a best effort service, in lawful ways, because those services compete with a carrier's own voice and messaging services. The “blocking” issue might be seen by some of us as the more important issue here.
It has been a common practice in Europe for some time that mobile operators block or discriminate against Internet services which compete with their legacy offerings, which might be viewed more a matter of restraint of trade than a matter of content freedom. That appears to have happened in Europe. As European Commissioner Neelie Kroes said, “blocking or charging extra fees for VoIP has been reported on mobile operators in Austria, Germany, Italy, the Netherlands, Portugal, and Romania.”
In this case the issues of content freedom and retail features are conflated, since the additional fee applies specifically to a few particular apps, and those apps could not be used, though lawful, unless the fee was paid. But the issues of freedom to use lawful apps and how retail pricing is set are not necessarily always related.
An access provider might provide other optional services or features to customers who pay for those additional services. Service providers do that all the time for business customers. Many would argue that an access provider ought to be allowed to sell various types of access for users of different apps. If real-time services are important, then consumers should have the option of buying quality of service provisions, just as business customers do.
Users should be able to buy “best effort” Internet access and other types of quality assured access. As electricity firms have peak and off-peak pricing, access providers ought to be free to use such mechanisms. Pricing by consumption or quality metrics are different ways this might be done. What access providers should not be able to do is block use of lawful apps, used in lawful ways.
The area where many people might agree is that consumers should be able to use all lawful Internet applications, in a lawful manner, so long as use of those applications is within an access providers typical terms and conditions for use of the access service generally. That means there should not be a separate fee for use of Skype or messaging applications, as a matter of course, when consumers buy services with consumption quotas or caps.
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