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THE CASE of ZERO-RATING Olivier Sylvain* CITE AS: 2 GEO

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THE CASE of ZERO-RATING Olivier Sylvain* CITE AS: 2 GEO GEORGETOWN LAW TECHNOLOGY REVIEW INTEGRATIVE INFORMATION PLATFORMS: THE CASE OF ZERO-RATING Olivier Sylvain* CITE AS: 2 GEO. L. TECH. REV. 360 (2018) Zero-rated services provide an on-ramp to networked resources that are otherwise beyond many users’ reach. Through such services, wireless service providers offer free access to a curated set of popular applications on the public Internet. Its proponents assert that zero-rated services provide an invaluable introduction to online applications and content, which, in turn, will increase adoption rates in the most neglected markets. But zero-rating has split communications policymakers around the world. Proponents argue that it grows adoption rates.1 Opponents argue that it violates the network neutrality norms of nondiscrimination and “innovation without permission.”2 Other opponents assert that zero-rating dissuades governments from committing resources to alternative ways of deploying affordable service universally.3 The issue has been challenging for communications scholars to sort through, as it joins a variety of arguably incompatible regulatory norms.4 I argue here, instead, that zero- rating should only be evaluated in the way all communications technologies are: how does it enable all members of the community to contribute to and engage in public life on equal terms? * Professor of Law, Fordham University School of Law. 1Arturo J. Carrillo, Having Your Cake and Eating It Too? Zero-Rating, Net-Neutrality, and International Law, 19 STAN. TECH. L. REV. 364, 424–25 (2016); Darrell M. West, Digital Divide: Improving Internet Access in the Developing World Through Affordable Services and Diverse Content, Ctr. for Tech. Innovation at Brookings, 10–11 (Feb. 2015) https://www.brookings.edu/wp-content/uploads/2016/06/West_Internet-Access.pdf [https://perma.cc/4JDB-X2J7]. 2 Barbara van Schewick, Network Neutrality and Quality of Service: What a Nondiscrimination Rule Should Look Like, 67 STAN. L. REV. 1, 9, 30 (2015). 3 See Carolina Rossini & Taylor Moore, Exploring Zero-Rating Challenges: Views From Five Countries, PUB. KNOWLEDGE (July 2015), https://www.publicknowledge.org/press- release/public-knowledge-publishes-net-neutrality-paper-investigating-zero-rating-p [https://perma.cc/VG8A-GKT7]. 4 See, e.g., Rob Frieden, The Mixed Blessing in Subsidized Internet Access, 15 COLO. TECH. L.J. 269 (2017); Ellen P. Goodman, Zero-Rating Broadband Data: Equality and Free Speech at the Network’s Other Edge, 15 COLO. TECH. L.J. 63 (2016). 2018 GEORGETOWN LAW TECHNOLOGY REVIEW 361 There are undoubtedly ways in which zero-rated services present a cost-effective opportunity for communities who long to be online. But there are reasons to be skeptical about their ability to actually achieve this objective. I argue here that regulatory regimes, which permit zero-rating are troubling to the extent that they fail to redress disparities in users’ engagement of the networked information economy. The new attention to zero-rating creates an opportunity to revisit an essential aspect of communications law that in recent years appears to have been all but forgotten among policymakers and scholars. This essay attempts to resuscitate the longstanding but often overlooked objective of ensuring universal access to reasonably comparable communications services. The idea is simple: the main purpose of communications policy (in democracies, at least) is to ensure that all members of the polity have the meaningful opportunity to engage in commerce and participate in public life—that they have access to the full bazaar of resources on which citizenship in the given community is based. The concept is not new. It finds its earliest legal expression in the United States in the Postal Clause of the Constitution,5 a provision to which Justice Joseph Story devoted several sections of his opus on constitutional law. The post office, Justice Story explains, circulates intelligence of a commercial, political, intellectual, and private nature, with incredible speed and regularity. It thus administers, in a very high degree, to the comfort, the interests, and the necessities of persons, in every rank and station of life. It brings the most distant places and persons, as it were, in contact with each other; and thus softens the anxieties, increases the enjoyments, and cheers the solitude of millions of hearts. It imparts a new influence and impulse to private intercourse; and, by a wider diffusion of knowledge, enables political rights and duties to be performed with more uniformity and sound judgment.6 This conception of communications policy has informed telecommunications policy for over a century, even if its implementation often redounded to monopoly service providers like AT&T.7 I have argued 5 U.S. CONST., art. I, § 8, cl. 7 (Congress has the power “To establish Post Offices and post Roads.”). 6 Joseph Story, Commentaries on the Constitution 3 § 1120. 7 See TIM WU, MASTER SWITCH (2012); RICHARD JOHN, NETWORK NATION (2010); PAUL STARR, THE CREATION OF THE MEDIA: POLITICAL ORIGINS OF MODERN COMMUNICATIONS (2005). 362 GEORGETOWN LAW TECHNOLOGY REVIEW Vol 2.2 elsewhere that policymakers should reorient communications to promote deontological interests in universality, equality, and social integration.8 This paper picks up where that last project only gestured in the context of zero-rating. I propose here the foundations of a theoretical framework for evaluating communications policy outside of its ability to increase rates of new user adoption. I. ZERO-RATING AS A REMEDY FOR ACCESS DISPARITIES A. Disparities in Internet Use The spread of wireless services around the world has helped to close the divide between those with access to the Internet and those without. But disparities in use persist largely because wireless service is generally not as fast, reliable, or immersive as wired connections.9 In the United States, for example, African-Americans and Latinos are equally as likely to access the Internet as Caucasians; however, the general online experiences between these groups are vastly different because the former rely on wireless devices at three times the rate at which the latter do.10 Similar patterns of disparity characterize the nature of online engagement between poor people and wealthier people on the one hand, and rural and urban residents on the other.11 Such disparities are even more egregious around the world. Latin America has an average of forty-three percent Internet penetration.12 Only eighteen percent of the population of Sub-Saharan Africa has access to the 8 Olivier Sylvain, Network Equality, 67 HASTINGS L.J. 443 (2016). 9 See Philip M. Napoli & Jonathan A. Obar, The Emerging Mobile Internet Underclass: A Critique of Mobile Internet Access, 30 INFO. SOC’Y: INT’L J. 323, 326 (2014); see also Eli Noam, Let Them Eat Cellphones: Why Mobile Wireless Is No Solution for Broadband, 1 J. INFO. POL’Y 470 (2011). 10 Sylvain, supra note 8, at 464–69 (2016); see also Boris Bartikowski et al., The Type-of- Internet-Access Digital Divide and the Well-Being of Ethnic Minority and Majority Consumers: A Multi-Country Investigation, 82 J. BUS. RES. 373, 374, https://ac.els- cdn.com/S0148296317303260/1-s2.0-S0148296317303260-main.pdf [https://perma.cc/XD89-58R4] (“Such type-of-internet-access differences are important because smartphones, as compared to regular computers, are less suitable for engaging in economic value creating online activities, such as brand- or price-comparisons, applying for a job, or following an educational program.”). 11 Sylvain, supra note 8; Bartikowski et al., A Multi-Country Investigation, supra note 10. 12 Between Latin American states, however, there is significant variation: as of 2011, only a few states had more than one-third of their population using information communicative technologies, and even wealthy states had only 10 percent internet penetration. See Tricia Gray et al., Gender and the Digital Divide in Latin America, 90 SOC. SCI. Q. 326, 329 (Mar. 2017). 2018 GEORGETOWN LAW TECHNOLOGY REVIEW 363 Internet.13 And India, despite having “the third-largest Internet user base in the world,” has only ten percent Internet penetration, due to lack of access in its rural areas.14 Even as Internet access rates increase globally, lack of access remains a major issue.15 B. Redressing Disparity Policymakers and scholars generally attribute disparities in online use to unequal patterns of infrastructure investment and development.16 Governments accordingly commit public funds or create incentives to reverse these inequalities. They have, among other things, directly invested in physical fiber-optic and wireless networks. State and local governments in the United States have supported the construction of citywide broadband networks and facilities, some of which they own or co-own and maintain in cooperation with commercial providers. National governments, including that of the United States, have provided means- tested subsidies directly to qualifying “underserved” users and communities.17 And, according to recent news reports, policymakers in the United States are entertaining a massive billion-dollar investment in next- generation wireless networks.18 13 For example, while 48 percent of the populations of Kenya, Nigeria, and South Africa have internet access, only 9 percent have access in Ethiopia, Malawi, and Tanzania. See Fenohasina Maret & Daiki Akiyoshi, Turning Africa’s Digital Divide into Digital Dividends, URB. INST. (May 9, 2017), https://www.urban.org/urban-wire/turning-africas- digital-divide-digital-dividends [https://perma.cc/ULZ8-U2S7]. 14 Charu Malhotra, Bridging Digital Divide: Special Emphasis on Rural India, 55 PRODUCTIVITY 276, 278 (2014). 15 Broadband Commission for Sustainable Development, The State of Broadband: Broadband Catalyzing Sustainable Development, INT’L TELECOMM. UNION, at 10–13 (Sept. 2017), https://www.itu.int/dms_pub/itu-s/opb/pol/S-POL-BROADBAND.18-2017- PDF-E.pdf [https://perma.cc/9VEA-6EN2] (“In practice, it is virtually impossible to experience the Internet effectively via a 2G connection. Only 76% of the world’s population lives within access of a 3G signal, and only 43% of people have access to a 4G connection.
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