US should look to Brazil and the EU for strong net neutrality rules

It’s been a busy spring for open Internet advocates around the world.

At the end of April, Brazil finally approved the Marco Civil, a landmark bill that enshrines net neutrality and other key Internet principles into law. Earlier in the month, the European Parliament voted in favor of a strong set of net neutrality rules for the continent, bolstered at the last moment in response to pressure from pro-consumer advocates. Meanwhile, here in the United States, the Federal Communications Commission is sparring with public interest advocates and members of Congress who have serious concerns over the FCC’s proposal to reinstate net neutrality protections after the DC court struck down the Open Internet rules in January. Given the importance of protecting a free and open Internet, examples from Sao Paolo and Brussels should inform policymakers as they weigh in on the domestic debate.

In Brazil, net neutrality was officially codified at the beginning of the NETMundial conference, a multistakeholder Internet governance convening in Sao Paolo in late April. The signing of the Marco Civil da Internet—commonly referred to as Brazil’s Internet bill of rights—was a huge victory for advocates of a free and open Internet, who have been pushing for the bill to pass with strong language for years.

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The Brazilian victory was hard won. Although the Marco Civil grabbed positive headlines when it was drafted through a largely public consultation process in 2009 and 2010, the landmark legislation has faced an uphill battle recently. Just this March, Eduardo Cunha, a former telecom executive and lobbyist for Brazil’s major telecom companies, led the effort to gut the net neutrality provisions from the bill, which prevents them from charging higher rates for access to bandwidth-heavy content. In response, activists and members of civil society quickly mobilized to “Save the Internet” and called on legislators to protect the open Internet.

Fortunately, Brazilian politicians listened, and when the long-awaited bill passed in April, it included the section on net neutrality. According to the final language, ISPs are not allowed to “offer services in non-discriminatory commercial conditions” and must “refrain from anti-competition practices.”

Similarly, the European Parliament voted for net neutrality rules in early April which outlaw network discrimination through blocking or throttling content and services and prevent anti-competitive commercial agreements. The amended rules also closed the worrisome “specialized services” loophole (what we call “paid prioritization” in the U.S.), attempting to ensure that the language is sufficiently narrow to prevent ISPs from becoming gatekeepers for online content and services.

The reaction from telecom companies in the EU was, unsurprisingly, negative. In an unusual alliance, the four major European telecommunications trade associations joined forces just before the vote to release a statement strongly opposing the reforms, calling the legislation “anti-innovation” and “anti-consumer.” Nonetheless, Members of the European Parliament held their ground and passed the bill with the proposed amendments. The legislation will now go to the Council of Europe for approval (and must be implemented and enforced by the EU member states).

The progress made in Brazil and the EU stands in stark contrast to what’s happening here in the U.S. After the court struck down the Open Internet rules in January 2014, it seemed like the FCC had a clear path to reinstate net neutrality: reclassify broadband as a Title II telecommunications service. Reclassification would allow the FCC to treat broadband providers as common carriers, meaning it could implement clear and strong new rules that would prevent discrimination, blocking, and could even address paid prioritization issues. Instead, a watered down set of proposed rules was leaked to the press last month, which would address some discrimination issues but would create an even larger loophole for ISPs to charge for fast lanes.

Of course, the international comparisons aren’t perfect—and it’s important to remember that with the new EU and Brazilian rules, the specifics of implementation and enforcement are still somewhat unclear. But in both cases, lawmakers took a firm stand on the issue, siding with advocates of a free and open Internet even in the face of fierce lobbying from incumbent service providers. Here in the U.S., the drumbeat of opposition to the FCC’s proposal is growing louder by the day, with Internet companies from startups to giants like Amazon, Google, and Microsoft—not to mention two FCC Commissioners and almost a dozen members of Congress—now calling for stronger rules than what FCC Chairman Tom Wheeler originally put on the table. In response, the Chairman circulated a new draft of the proposed rules, which is a step in the right direction (although some critics have questioned whether it’s just the same proposal in different language). Clearly, there is a lot of work left to be done to secure strong net neutrality protections for Internet users everywhere.

Kehl is a policy analyst with the Open Technology Institute at the New America Foundation.