2018 Annual Report

2018 ANNUAL REPORT This is the third annual report of the Network Neutrality Arbitration Board. The Arbitration Board, which began operating on September 1, 2015, was launched on the initiative of the SUISSEDIGITAL Association of Communications Networks (Bern), Salt Mobile Ltd (Renens), Sunrise Communications Ltd (Zurich), Swisscom Ltd (Ittigen), and UPC Switzerland LLC (Wallisellen), and is run by the Network Neutrality Arbitration Board association. The Board investigates alleged violations of the Code of Conduct. WHAT DOES THE NETWORK NEUTRALITY ARBITRATION SWISS NETWORK OPERATORS COUNTING BOARD DO? ON SELF-REGULATION The Network Neutrality The Code of Conduct on Network Neutrality enshrines the Arbitration Board mediates Swiss network operators and industry associations' disputes between customers commitment to an open Internet. They guarantee that and network operators. Internet users in Switzerland will be able, within the scope Consumers should be able to of their customer contract, to send and receive content of their choice and to use services and applications and report violations of the Code of appropriate hardware and software of their choice. The Conduct on Network Neutrality, network operators also undertook to ensure transparency. with which network operators have undertaken to comply. POLITICAL BACK AND FORTH The revision of the Swiss Telecommunications Act (TCA) www.s-nn.ch led to renewed political discussions about network neutrality and its legal anchoring after a procedural request in this regard was approved by Switzerland's National Council in 2015 but then rejected out of hand by the Swiss Council of States. In 2017, the Swiss Federal Council advised against comprehensive regulation, with Federal Councilor Doris Leuthard saying there was no evidence that network neutrality was being violated in Switzerland. However, she also indicated that network operators should be required to inform their customers and the authorities if they treat data differently. The National Council Transport 2 and Telecommunications Committee (TTC-N) came to a ARBITRATORS different view of network neutrality, approving on July 4, 2018 a request seeking to include in the TCA a provision The Arbitration Board consists of guaranteeing this. The National Council endorsed this three arbitrators: the president proposal on September 28, 2018. Under the proposed chairs arbitration processes, and two provision, appearing in a new Article 12e in the TCA, further arbitrators are experts in network operators would transmit information over the consumer and industry matters Internet without making any technical or economic respectively. distinction in this regard between senders, receivers, content, services, classes of services, protocols, applications, programs, or terminal devices (para. 1). This would be followed by a paragraph 2 covering exemptions, specifically due to legal or judicial provisions, safeguards, or any temporary and out-of-the-ordinary network congestion. Finally, this provision also requires transparency for consumers. The Council of States Dr. Rena Zulauf, President introduced another provision on November 27, 2018 to • Lawyer, LL.M. enable network operators to prioritize special services such • Partner at Zulauf Partners as IPTV and 4G mobile telecommunications (VoLTE). It is • Lecturer in media and unclear whether this provision covers zero-rating: by communications law introducing a requirement to ensure equal treatment from both a technical perspective and an economic point of view, the legal text creates scope for discretion which demands further clarification. IMPORTANCE OF NETWORK NEUTRALITY FOR CONSUMERS Frank Boller, Arbitrator For all the lively political debate surrounding the legal • IT/telecoms background (HP, diAx, Sunrise, upc cablecom) regulation of network neutrality, the Network Neutrality • Independent consultant and Arbitration Board did not have to handle many cases in this interim manager in the Swiss regard: indeed, not a single request for arbitration was ICT market submitted to the Arbitration Board in the reporting year • CEO of green.ch Ltd. 2018. Even in 2017, only one such request was filed; in • Vice President of SwissICT 2015/2016, there were seven requests (five of these did not relate to network neutrality and therefore were dismissed). For the Arbitration Board this raises the question why there is such a lack of arbitration requests. It believes there are two possible explanations: 1. Network neutrality cases being discussed and Petra Rohner, Arbitrator • PR Consulting GmbH potentially resolved directly with network • Lecturer in social media operators • Advisory Board member at Konsumentenforum (kf) Anybody submitting a request for arbitration to the Arbitration Board must have already contacted and 3 discussed and potentially resolved their concerns directly with the relevant network operator. Therefore, consumers making contact directly with network operators could be "Opinions differ about one possible explanation why the Arbitration Board is not network neutrality- contacted very often. related interventions that should be allowed and how narrowly this "The Arbitration Board is a point concept should be of contact for analysis and defined. I think what is discussion of the issue of network important is neutrality from a practical transparency for perspective." consumers." Dr. Rena Zulauf, President and Arbitrator Petra Rohner, Arbitrator 2. Consumers not perceiving any problems Another explanation could be that there is no immediate perception of the issue of network neutrality among many Internet users, who also do not experience real problems with it when surfing the web. One of the reasons for this is that by international standards Switzerland has a very high average Internet bandwidth, and therefore discrimination on the basis of capacity, involving network operators prioritizing their own services, does not seem to be a major concern. One particularly thorny political issue involves zero-rating offers and their longer-term impact on technological innovation. For instance, in the case of some network operators consumers pay nothing to transfer their data via Whatsapp, for example, because these data are not deducted from their contractual data volume. However, if the same customer uses another messaging service, such as Threema, the data will be deducted. As regards zero-rating, the Arbitration Board stated in its recommendation 01/2016 that it was not responsible for formulating corporate, political or self-regulation initiatives. It can only assess individual cases based on the Code of Conduct. However, in the above recommendation the Arbitration Board did call on the network operators to monitor the potential influence of zero-rating offers on technical innovation in a critical and nuanced manner. 4 CONCLUSION AND OUTLOOK "Self-regulation One explanation why the Arbitration Board is not contacted complements, entrenches, very often could be that, as pointed out above, consumers and refines existing legal discuss and ideally resolve any network neutrality issues norms and enables with the relevant network operator before submitting a regulatory, streamlined request for arbitration. To check whether network fine-tuning that cannot neutrality-related inquiries are received by the network operators, the Arbitration Board will ask these operators to be easily achieved with provide it with information about the number of inquiries the broad brush of on network neutrality issues handled by their contact legislation." centers and the main subjects that are complained about, discussed, and, as the case may be, resolved. Frank Boller, Arbitrator In its recommendation 01/2016 the Arbitration Board called on the network operators to monitor the influence of zero-rating offers on technical innovation in a critical and nuanced manner. Following up on this call, the Arbitration CONTACT Board will sound out the network operators about their experiences and observations relating to the issue of zero- rating in the interplay between technological innovation Network Neutrality Arbitration Board Wiesenstrasse 17 and business freedom and whether conclusions have been PO Box 552 drawn from these. CH-8032 Zurich It will report in due course on the outcome of these Tel.: +41 (0)44 205 99 20 Fax: +41 (0)44 205 99 21 inquiries, in keeping with its role as a point of contact for analysis and discussion of the issue of network neutrality www.s-nn.ch from a practical perspective. [email protected] .

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