ECTEL proposes net neutrality language in draft regulations to complement revised Electronic Communications bill

The Eastern Caribbean Telecommunications Authority (ECTEL) is the regional, multi-state telecoms regulator for the Eastern Caribbean.  Recently, ECTEL put forward a slew of recommendations on various regulatory instruments to be enacted in the Eastern Caribbean. The regulations would go hand-in-hand with the proposed revisions to the Electronic Communications bill.

The proposed regulations cover: infrastructure sharing; submarine cables; market assessment; retail pricing regulation; and consumer protection

From an end-user perspective, the Consumer Protection regulations are clearly the most notable. Within those regulations are provisions which, interestingly, tackle net neutrality, protection of consumer data as well as privacy. 

In my estimation, the inclusion of net neutrality is the most impressive aspect of this proposed regulation. In a global context, only Brazil, Chile, the Netherlands and the United States have already expressly put in place substantive net neutrality legislation.

If passed, the Eastern Caribbean would, therefore, join an exclusive club of forward looking nations who have already explicitly enshrined net neutrality in legislative enactments. Pretty heady stuff.

On review, the Electronic Communications bill itself merely defines net neutrality and includes it as an object of the act. Curiously, the bill itself does not enshrine the right per se. Rather, the heavy lifting is left for the proposed consumer protection regulation. This is concerning for two reasons: 

  1. by placing it in the consumer protection regulation, it presumes that net neutrality is primarily about protecting end-users. Indeed, the language used, confirms that this seems to be the aim. This is problematic since it only covers half of the parties who are potentially negatively impacted by interferences with the delivery of content over the internet’s infrastructure. The reality is, it is also digital service providers who’s ability to deliver content over the internet who lose when an ISP decides to intervene.
  2. if it is a substantive right then surely the appropriate place to secure it is in substantive legislation which, at the very least, would require the rigour of two houses of parliament to interfere with in future. With mere subsidiary statutory instruments, it is much easier to amend without rigorous scrutiny. Therefore, it stands to reason that it could easily be amended in future. 

To be sure, I have, in the past, argued that the most effective manner for a country’s legislature to handle changes in technology is to have subsidiary legislation bear the brunt of the particular legislative innovation. Therefore my view here may appear contradictory. However, net neutrality isn’t a fad concept or technology that requires a state to grapple with its shelf life as a consideration in determining the legislative rigour necessary to usher it into society. In 37 years netizens will still argue back and forth about protection of net neutrality as a fundamental internet-related right. It is an enduring principle and its rightful protection mechanism, therefore, is in substantive legislation.

The consultation period for the proposed legislation initially expired on March 11, 2016 but has since been extended to May 12, 2016, so there is time to review and make any comments.

Link: Full Proposed Regulations. (pdf)

Link: Proposed revised Electronic Communications Bill for the Eastern Caribbean (pdf)

Link: Announcement on the ECTEL website.