In connection with the Body of European Regulators of Electronic Communications' forthcoming adoption of implementation guidelines for the European Union's network neutrality rules, Free State Foundation President Randolph May and Senior Fellow Seth Cooper submitted the following letter to BEREC.
Dear Body of European Regulators of Electronic Communications:
This letter concerns BEREC's adoption of implementation guidelines for the European Union's network neutrality rules. Specifically, we write to commend the pro-adoption and pro-consumer benefits of "free data" or zero-rated plans, which the EU rules wisely permit. While these innovative plans vary, they share an important characteristic: they offer consumers an attractive low-cost option for using wireless data services.
Free data or zero-rated plans, in one way or another, allow subscribers to avoid data usage charges when accessing certain websites, such as music or video sites, or, for example, Facebook's "Free Basics" program. Although such plans differ in their details - as Free State Foundation scholars explain at considerable length in two attachments to this letter - in general they offer price-sensitive consumers a low cost alternative for accessing data that they otherwise would forego. Free data plans are therefore pro-adoption, pro-consumer, benefitting new and low-income subscribers in particular.
In the event that possible anti-competitive concerns exist, the EU net neutrality rules allow member countries to conduct case-by-case analyses of free data or zero-rated plans. This case-by-case approach is strongly preferred to an across-the-board ban on these pro-adoption and pro-consumer plans. Given the benefits to consumers of free data plans, especially to low-income consumers, concrete evidence of anti-consumer harm should be required to be demonstrated before restrictions on such plans should be considered. Calls for outright bans are unwise and fail to identify any kind of anti-consumer conduct or harm. In fact, a ban on free data plans would harm consumers by eliminating a pro-adoption, low-cost choice in the marketplace.
Free data or zero rated plans do not block or restrict access to websites that are not participants in the plans subscribers sign up for. Subscribers to free data plans, who are not typically high-volume users, can still access websites of their choice. Moreover, wireless consumers do not have to sign up for free data plans. They may choose other plans as they see fit. A ban would deprive consumers of the ability to choose a plan that they conclude best fits their needs.
In view of the pro-adoption, pro-consumer benefits conferred by free data or zero-rated plans and the lack of any concrete evidence of consumer harm inherent in such plans - discussed at greater length in the two attachments appended hereto - we urge BEREC to adopt implementing guidelines that are consistent with the case-by-case approach contained in the EU rules.
Respectfully submitted,
Randolph J. May
President
Seth L. Cooper
Senior Fellow
A PDF of the letter with the attachments is here.
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Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a current public member of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 180 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the co-author, with FSF Senior Fellow Seth Cooper, of the recently released The Constitutional Foundations of Intellectual Property and is the editor of the book, Communications Law and Policy in the Digital Age: The Next Five Years. He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform. And he is the editor of the book, New Directions in Communications Policy and co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated And Communications Deregulation and FCC Reform.
Seth L. Cooper is a Senior Fellow at The Free State Foundation. He previously served as the Telecommunications and Information Technology Task Force Director at the American Legislative Exchange Council (ALEC), as a Washington State Supreme Court judicial clerk and as a state senate caucus staff counsel. He is an attorney, and he graduated from Seattle University School of Law with honors. Mr. Cooper's work has appeared in such publications as the San Jose Mercury News, the Iowa Des Moines Register and the American Spectator. The Free State Foundation is a non-profit, independent free market-oriented think tank.
The Free State Foundation
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