On December 19, 2019, the Mexican telecoms regulator issued an advanced notice of a public consultation process on the rulemaking regarding net neutrality. Comments are sought from offshore OTTs, ISPs and local internet companies. Comments must be submitted by March 6, 2020, to be considered in the formation of any proposed Net Neutrality Guideline.
Net neutrality, technological neutrality, preferential routing, and differential pricing are key principles and trends in the internet spectrum that became a question of public policy. On December 19, 2019, the Mexican telecom regulator (known as the Federal Telecommunication Institute or "IFT" in Spanish) published the draft for Traffic Management and Internet Administration (binding) Guidelines (hereinafter "Net Neutrality Guidelines").
Net neutrality is the principle that companies who provide access to the internet (hereinafter "ISPs"), must safeguard equal access to all content and applications regardless of the source, and without favoring or blocking specific products or websites. By way of brief background, the 2014 Federal Telecommunications and Broadcasting Law (the "Law") introduced net neutrality in (chapter VI) article 145 of the Law. Regardless of its existence in the Law, for five years the IFT was pending to issue binding secondary guidelines to regulate the application of the Law. Therefore, 3RD a non-governmental organization that fosters consumers' digital rights filed a lawsuit (Amparo trial 32/2019) against the IFT and petitioned court relief. In August 2019, the second district court specialized in telecommunications and broadcasting ruled in favor of 3RD and instructed the IFT to carry out a public consultation process to issue the Net Neutrality Guidelines.
The draft of the Net Neutrality Guidelines can be found here:
For OTTs, video on demand, social media, streaming, search engines, marketplaces, and other internet companies this means that:
- The preliminary draft favors the commercial interests of ISPs by allowing applications, content providers and services to pay for traffic prioritizing. Technologies such as deep packet inspection have permitted preferential routing practices whereby ISPs may limit user access to content through download rates.
- The Net Neutrality Guildelines may impose measures that could jeopardize freedom of speech, freedom of the internet and access to data by providing clearer governmental control and censorship powers. Nowadays, most messages are carried by cloud-based services and not the traditional telephone network. This means that a substantial percentage of communications are beyond the practical reach of Mexican law enforcement agencies as identifying the relevant content or the metadata (such as name, device, location, to whom you are talking and for how long) and translating the bits into a comprehensible format is often technologically difficult or impractical.
The legal landscape in the EU and the US
Net neutrality was introduced into EU law in November 2015 through the Regulation on Open Internet Access ((EU) 2015/2120), which was legislated to supplement to the transparency measures outlined in the Universal Service Directive (2002/22/EC). The US has been a more controversial debate. In 2015, the Federal Communications Commission put in place strong net neutrality rules. However, in December 2017, net neutrality was deregulated as the FCC under the Trump administration voted to repeal said rules. The 2020 scenario is for US states to issue and enforce local net neutrality legislation.
We can help
If you have questions about the Mexican Net Neutrality Guidelines or would like to submit a legal opinion, we would be happy to liaise with local counsel and assist you. All comments and legal stands on the IFT proposed approach, must be submitted by March 6, 2020, to be considered in the formation of any proposed Net Neutrality Guideline.
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