Jorge Bossio and APCNews
Publisher: APCNews LIMA, 30 July 2009
Someone turns on his or her computer, clicks on a link to a website that someone recommended and gets a message like this from the internet service provider: “This site is not available with the basic service plan. To subscribe to premium service, please call 0-800-555-1234.”
Then, the same person tries to visit the website where his or her family uploads and stores photos and videos and get this message: “This service is no longer included as part of this service plan. Click here for access through the low-speed public network or click here to find out about the other plans we offer.”
This situation, which seems like a something out of a science fiction novel, clearly shows what could happen if the principle of net neutrality was abandoned. In fact, this would imply the existence of two networks, one open and public and the other closed and exclusive, similar to free-to-air television channels and cable television channels. Certain websites or online applications would only be accessed by paying extra for a specific internet access service, just like the “premium” channels on television. Besides, people would have to pay an internet company extra to have their company websites or blogs visible to regular customers and visitors.
Who could even think of turning the internet into something so much like television? The debate between those who want the internet to remain open and unfiltered (net neutrality supporters) and those who propose the use of network management systems to make more efficient use of the network (network management supporters) is complex and covers a wide range of issues.
For those who support net neutrality the issues at stake run from market concentration and the possibility of a single company gaining majority or even monopoly control over the market, to issues related to freedom of expression and obstacles to innovation, competition and universal broadband access.
On the other hand, advocates of network management place emphasis on making better use of existing networks to prevent congestion, providing every user with the service and quality that they are paying for, and the possibility of generating revenues that can be used to finance the expansion and technological upgrading of networks, to convert them into new generation networks capable of supporting broadband services.
What’s going on in Peru today: Between rights and facts
Much of the international debate centres around whether or not to establish legal guarantees for net neutrality, that is to say, regulations that prohibit discriminatory practices by internet service providers.
Even if Peru has pioneered the way with a regulation that specifically states that internet service providers cannot block or limit the use of any application, some contracts between operators and end users contain clauses that break this principle. This is the case of the internet service offered through third generation (3G) technology by the mobile operator Claro (mobile telephony operator), which states in one of the annexes to its service contract that “Claro reserves the right to block certain types of internet traffic such as voice over IP [internet protocol] (for example, Skype, Google Talk, etc.), peer-to-peer traffic (for example, eMule, BitTorrent, etc.), spam and any others that it deems necessary.”
Voice over internet protocol (VoIP) issues are also at stake. This voice traffic is not prohibited in Peru, because it is considered a value-added service. However, since voice communication over the internet is not considered a real-time telephony service, operators can, under the right granted to them by law, suspend the provision of service when they detect “improper use”.
One of the main issues is that the term “improper use” is not adequately defined in Peruvian legislation. Based on this legal gap, operators have access to a tool for interfering with or blocking certain uses of the network at their own discretion. In fact, in a document entitled Policy on Acceptable Use of Internet Services, Telefónica states that the company “reserves the right to suspend or terminate the services provided, at any time and without prior notice, to customers who do not comply with this policy.” This would be an explicit failure to observe the legal framework established by the regulator, OSIPTEL. OSIPTEL establishes in certain provisions that upon improper use of the service, the operator will report this activity to OSIPTEL prior to the adoption of any action [cautionary suspension or permanent termination of service] which the operator has the right to adopt.”
Tangled in a web of contracts and regulations
Another legal inconsistency has to do with a provision from the regulator that states that a subscriber’s contract terminates, among other reasons, on the grounds established in the subscription contract itself. This essentially grants operators the right to stipulate in their subscription contracts, at their own discretion, specific conditions of service and rules of behaviour for internet users.
Thus Telefónica del Perú has established a clause for its home internet service, Speedy, that stipulates that customers are obliged to comply with the Policy on Acceptable Use of Internet Services, which states: “The customer is obliged to make use of content in accordance with the law, the present General Conditions, generally accepted moral values and good manners, and the public order.”
Through this clause, Telefónica reserves the right to penalise a customer for inappropriate use of the service and even for spreading “false, ambiguous, inaccurate, exaggerated or untimely” content, thus granting itself powers that correspond to the Peruvian administrative and judicial authorities.
The Peruvian legal framework reflects a clear discrepancy between the rules established by the regulator and the practices of telecommunications operators when their services are contracted. The fact that there were no formal complaints from users or organisation representing them speaks for itself. The debate seems unavoidable.
This article was based on research by Jorge Bossio [http://www.apc.org/es/node/8871], produced by Communication for influce in Latin America (CILAC) [http://www.apc.org/es/node/6349], a project being undetaken by APC’s policy in Latin America programme, and is one of a series of five research reports on the telecommunications reform and the access to broadband in Latin America [http://www.apc.org/en/8974].