Rob Nicholls. Ziggy’s stardust: The NBN, net neutrality and competitive neutrality

The sound of an incumbent lobbying has the grating element of petulant mewling. When the incumbent is a state owned enterprise that is evoking arguments about net neutrality, then it’s time to ask the “cui bono?” or “to whose profit?” question. After all, the term “network neutrality” can be best summed up as a line of argument use by large businesses in their lobbying.

In this case, it was the chair of the National Broadband Network Company, a business that likes to be known by its lower case initials nbn, that was flying the net neutrality kite. Ziggy Switkowski argued that it might be time to think about who should bear the cost of transporting streaming video from companies such as Netflix, Presto and Stan. Specifically, should the internet service provider (ISP) be able to charge Netflix and others for some of the carriage costs that it incurs? Ziggy also mentioned that access to nbn’s network might be more expensive to smaller ISPs.

This might be a reasonable question to ask. The speech was on 16 November and attracted comments from the electronic trade press on the day and was covered by Fairfax on 23 November. Of itself, this suggests that nbn wants the question asked. However, the issue has much less to do with net neutrality that it does with the Chair of nbn seeking to change the scope of the company’s business. nbn is constrained by the shareholder ministers’ wishes expressed in a Statement of Expectations and its regulatory constraints which are imposed by law and nbn’s own Special Access Undertaking, that it gave to the ACCC. These assume that retail providers connect to nbn’s network at one or more of the 121 points of interconnection to nbn’s network. In doing so, the retail provider pays a two part tariff reflecting both the connection bit rate and the volume. The volume component is the Connectivity Virtual Circuit (CVC). This is a pure pricing construct, as there is no underlying cost for the CVC.

The problem for Ziggy is that Australian internet users, in common with internet users all over the world, want to download more content. In doing so, they make the interconnection to nbn’s network look increasingly expensive at no additional cost to nbn. However, Ziggy’s argument on network neutrality harks back to an older era. For a start, each of the major providers of content pay for their own carriage across the Pacific. ISPs can interconnect with Netflix, Google (for YouTube) and Facebook in Sydney or Melbourne. Second, there are extensive content distribution networks to deliver the content closer to the points of interconnection and the use of these networks is paid for by the content providers. Netflix also offers ISPs the option of a no cost cache if they generate a great deal of traffic to a particular area. This Netflix Open Connect Appliance could logically sit at each of nbn’s points of interconnection (on the customer side of the CVC toll point) and Ziggy’s network neutrality issue would be resolved.

But nbn actually wants to change its operating environment by competing with existing infrastructure providers. The argument that the smallest ISPs cannot afford to connect at every interconnection point sounds like a problem. It is not. The large infrastructure providers offer carriage services to the ISPs on a wholesale basis. However, the effect of this is also to magnify the nbn’s odd CVC pricing arrangements. Instead of letting private sector competitors provide services, the state owned enterprise would rather provide the carriage itself. This has the convenient effect of masking the CVC problem and the inconvenient consequence of lessening competition among private sector actors.

The concept of competitive neutrality, with its origins in NSW state policy of the late eighties, its codification as a consequence of the Hilmer Review in 1993 and its role as the centrepiece of the proposals of the Harper Review last year, is a critical part of competition policy in Australia. If a state owned enterprise in another country argued that consumer demand was driving its actions in contradiction to the principles of competitive neutrality, Australian businesses would rightly complain. Using the the thin veil of network neutrality to try to justify breaching the principle when the solution to the problem is for nbn to change its pricing approach is not easily forgivable. Perhaps, like the album by David Bowie’s alter ego “Ziggy Stardust”, this line of argument should be released once and not be repeated.

Dr Rob Nicholls is Lecturer, School of Taxation and Business Law, UNSW Business School.

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