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Nonexistent Treaties Cited To Justify Internet Regulation, China Totally Stoked

It turns out the international treaties some academics are using to demand the U.S. regulate Internet aren’t actually real.

The Federal Communications Commission will vote later this month on whether to regulate the Internet under Title II of the Telecommunications Act, just like land-line telephones. While President Barack Obama has expressed support for the proposal, critics say it would open the door to price controls and other innovation-killing regulations. (RELATED: Obama Announces Support for Net Neutrality)

Title II proponents appeared to receive a boost in December, when Arturo Carrillo and Dawn Nunziato, two law professors at George Washington University, sent a letter sent to the Federal Communications Commission claiming that failure to impose Title II regulations “would violate international law obligations of the United States in the areas of international trade and human rights.”

They assert that under agreements made through the World Trade Organization (WTO), “the United States is bound to respect principles of nondiscrimination and free expression when regulating essential communications media like the Internet,” adding that, “Any FCC rule that does not meaningfully protect net neutrality would run afoul of these legal obligations.” (RELATED: Net Neutrality Bait and Switch to Title II)

The agreements in question are the WTO’s General Agreement on Trade in Services (GATS) and the Basic Agreement on Trade in Telecommunications Services (BATS), which the professors say forces governments to stop broadband providers from creating “fast” and “slow” lanes for third-party content– a practice called “paid prioritization.”

But according to Hosuk Lee-Makiyama, director of the European Centre for International Political Economy (ECIPE) and a former representative to the WTO and the U.N., “no such agreement [as BATS] exists—it’s a mash-up of two WTO agreements, and neither requires WTO members to legislate net neutrality into hard law.”

Lee-Makiyama says he “assumes that they refer to an amalgam of two entirely separate agreements: the Annex on Telecommunications, (commonly referred to as GATS Annex), and the Reference Paper on Basic Telecommunication,” but even then, he claims, their interpretations are dubious.

The Reference Paper, for instance, applies only to telecommunication operators and does not cover third-party service providers like app developers, which play a major role in the current debate over net neutrality. (RELATED: GOP Net Neutrality Bill Could Preempt Internet Regulation)

The GATS Annex partially addresses that limitation by stipulating that “access to public telecommunications networks and services must be offered on ‘reasonable and non-discriminatory terms and conditions,’” but even that agreement applies only when a signatory “has defined Internet access services as ‘public telecommunications,’ which the U.S. has not.”

Contrary to the GWU professors’ claims, Lee-Makiyama concludes, “the absence of safeguards against net neutrality is not a violation by the United States or the vast majority of WTO members and E.U. countries who have not legislated against paid prioritization.” In fact, he says, the exact opposite is the case.

“WTO rules,” he explains, “are principally designed to deregulate, rather than to force their members to regulate,” and GATS rules, in particular, were intended to “declassify telecommunication services as public utilities that become prone to protectionist measures and government mandates.” (RELATED: Net Neutrality has Become An Industrial Policy)

Moreover, Lee-Makiyama warns that seeing the U.S. reclassify Internet services under Title II “will justify attempts of other countries to take similar action.” Because most countries still heavily restrict their telecom sectors, he predicts that, “they will use this justification to reclassify various services as telecoms to restrict U.S. competition on their markets.”

China, for example, has for years “sought to reclassify the entire Internet as a ‘value-added telecommunication service’ to make its draconian censorship compliant with its WTO commitments,” and could seize on Title II regulation in the U.S. to justify that effort.

Lee-Makiyama is careful to note that he believes net neutrality “has its clear merits,” but contends that, “hyperboles only serve to undermine bipartisan support for trade, promote protectionism, and perpetuate the myth that international law infringes on national sovereignty.”

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