Europe’s Discourse on Network Usage Fee Proposal: Net Neutrality v. Freedom of Interconnection
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This article surveys and evaluates the current arguments for and against the European Commission’s recent proposal for “fair share” deal whereby selected “large traffic generators” are required to pay Europe’s local internet service providers for use of their networks in reaching their customers. While empirical arguments for such proposal can be responded to relevant facts, a democratically constituted government can still choose to enact transfer of wealth from content providers to internet service providers for what it believes to be public interest. Therefore, the article examines net neutrality as a norm that can control such wealth transfer and indeed finds that net neutrality has been recognized as part of international human rights law. However, network participants have been also guaranteed freedom to negotiate various settlement or no-settlement methods at interconnecting points, including “paid peering.” Then, the article differentiates the customary practice of paid peering from the European Commission’s proposal in that the latter is mandatory, and rather violates the freedom of interconnection as well. Such mandatory payment applied on the interconnecting parties in Korea have proven harmful to the Korean users’ affordable access to domestic contents and efficient access to foreign contents. Both BEREC and FCC have already banned “circumvention” of net neutrality by settlement schemes on interconnection points. The European fair share deal may be criticized as a case of a state actor mandating such circumvention, thereby undermining the values protected by net neutrality and freedom of interconnection.
Abstract
This article surveys and evaluates the current arguments for and against the European Commission’s recent proposal for “fair share” deal whereby selected “large traffic generators” are required to pay Europe’s local internet service providers for use of their networks in reaching their customers. While empirical arguments for such proposal can be responded to relevant facts, a democratically constituted government can still choose to enact transfer of wealth from content providers to internet service providers for what it believes to be public interest. Therefore, the article examines net neutrality as a norm that can control such wealth transfer and indeed finds that net neutrality has been recognized as part of international human rights law. However, network participants have been also guaranteed freedom to negotiate various settlement or no-settlement methods at interconnecting points, including “paid peering.” Then, the article differentiates the customary practice of paid peering from the European Commission’s proposal in that the latter is mandatory, and rather violates the freedom of interconnection as well. Such mandatory payment applied on the interconnecting parties in Korea have proven harmful to the Korean users’ affordable access to domestic contents and efficient access to foreign contents. Both BEREC and FCC have already banned “circumvention” of net neutrality by settlement schemes on interconnection points. The European fair share deal may be criticized as a case of a state actor mandating such circumvention, thereby undermining the values protected by net neutrality and freedom of interconnection.
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