Zero-rating in Colombia: the pulse between free applications and the validity of net neutrality
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For more than a year, Colombia's Constitutional Court has had on its hands a case that could change the rules of mobile internet supply in the country. The matter, which was discussed this week in the full chamber, but on which a decision has not yet been made, brings to the table key debates about network infrastructure, freedom of expression and the market power of companies such as Meta or Spotify.
This is a constitutional challenge filed by the organization El Veinte, dedicated to the defense of freedom of expression, against Article 56 of the National Development Plan 2010-2014. The norm allows internet service providers to offer zero rating or zero rate plans, a practice that despite its technicalities is familiar to users: it is the possibility of having cell phone plans that include the use of applications such as Whatsapp, Facebook or X (Twitter) without data consumption.
At first glance, such plans are offered as a benefit to users. However, they may clash with an internet principle widely defended by civil society organizations and included in several legislations around the world: net neutrality. According to this, Internet service providers cannot arbitrarily discriminate against traffic of applications and services. Similar to pipes with water or the power grid with energy, those who offer Internet connection must transport all data packets equally. To allow otherwise would be to 'break' the network architecture that made this technological revolution possible.
Between application use and restricted access
The article in question authorizes Internet service providers to "make offers according to the needs of market segments or their users according to their usage and consumption profiles, which shall not be considered as discrimination". According to the lawsuit, despite its wording, the regulation effectively discriminates by favoring traffic to applications offered at zero rate. On the other hand, it is the lower income users who are impacted by an 'incomplete' access to the Internet.
For Emmanuel Vargas, co-founder of El Veinte and plaintiff in the lawsuit, "having limited or partial access to the Internet for economic reasons is clearly discrimination. What should happen is that there should be plans of different economic scales that allow all people to have access". In his opinion, prohibiting zero rate plans in the country would not affect users, on the contrary, it could improve their conditions, because in that case companies "would have to compete to be the most attractive option for low-income people who want to have access to the Internet".
The argument about the need for an open and complete mobile internet becomes even more relevant when placed in the context of fixed internet. Residential internet access and quality in the country varies widely, with marked inequalities between departments such as Chocó and Cundinamarca. While in the latter there are 18.15 fixed accesses per 100 thousand inhabitants, in the former there are one fifth: 3.71. Added to this is the disparity in average download speeds: in Cundinamarca it is close to 80 Mbps (megabits per second) and in Chocó it is around 10 Mbps.
In practice, for many Colombians, the internet they know and use is their cell phone. According to the ICT Ministry, by the third quarter of 2023, 43.3 million mobile internet accesses were reported, a figure much higher than the 8.94 million fixed accesses, which include both residential and corporate services. Without the budget to acquire full access plans, browsing is reduced to restricted offers, where the zero tariff and the applications included limit and encourage an online experience mediated by social networks.
For a former commissioner of the Communications Regulation Commission (CRC), who preferred to keep his name confidential because he is an advisor to companies in the sector, the discussion on zero-rating has lost validity in recent years. "Before, data was more expensive, but the price has gone down. Now there is a lot of variety; plans with limited data, but with access to the entire Internet," he said. According to this source, he is not aware of noises or complaints in the sector, nor does he believe that zero-rating plans are relevant in the market.
A simple review of the prepaid plans of some operators shows the wide range of options: Tigo offers 5 GB of open navigation for 10 thousand pesos; Claro has one of 10 GB for $11,500 and Movistar sells unlimited data by the hour. But, in that same menu and with different modalities, these operators offer exclusive uses of the dominant applications: Whatsapp, Telegram, Waze or Youtube.
Net neutrality: from pipes and wires to applications
Coined by U.S. academic Tim Wu in 2003, net neutrality underpinned Internet activism and public policy discussion during the first decade of this century. By then, the biggest looming risk to access, decentralization and dissemination of online content was at the infrastructure layer. If the owners of the pipes and cables were allowed to maximize their interest, these players would negotiate the priority of data to the highest bidder and the Internet would end up concentrated like the subscription television grid.
As time went on, it became clear that the focus on the Internet would not be there but further upstream. While telecom operators have a big muscle and continue to look for ways to get a slice of the business, it is at the content layer - the Apple and Google Play app stores, and dominant players such as Meta and TikTok - where the funnel is. There, the traditional concept of net neutrality is blurred, but the problem of monopolies and access restrictions becomes more pronounced. This is perhaps where the central question lies: do partial mobile Internet offerings affect competition, access to information and use of the Internet?
Zero-rate packages are prohibited by some legislations. In the case of the European Union, the Body of European Regulators for Electronic Communications (BEREC) allows them only under certain conditions. To approve them, this body takes into account criteria such as the market power of operators and companies developing the applications, as well as the effects that these plans may have on consumer rights.
The Constitutional Court could enable 'agnostic' zero-rate plans, i.e., those that offer options to surf the Internet or access applications or services without consuming data, but without favoring a particular company. According to its intervention before the court, for Karisma Foundation this type of measures should comply with the principles of "free choice of users, information, transparency and no arbitrary discrimination in terms of content, applications or services".
The court process has been notoriously slow. The lawsuit was filed in 2021; a technical hearing was held in November 2022, and in 2023 the process passed by. A decision on the merits was expected this week, but did not come. Because of the relevance of the Colombian Constitutional Court in the region, the decision could set an important precedent on online freedom of expression in Latin America. However, in order for judges to influence these fundamental debates, they will have to make an effort to adapt their timing to technological change. The internet we had when the lawsuit was filed is not the same as it is now.
