The Application of the Legal Exceptions to Discriminatory Practices Regarding Network Traffic in Brazil: The Zero-Rating and the Technical Note n. 34 by CADE

Abstract

This article deals with the application of the network neutrality principle from the underlying perspective of the technical note n. 34 provided by the Administrative Council of Economic Defense (CADE), which covers the commercial practices known as zero-rating and their impact on Brazilian antitrust regulations. In order to achieve the objective of clarifying the guidelines and framework employed by the Brazilian administrative competent authorities to interpret that principle, it is necessary to elucidate first the definition of network neutrality and its relation to the underpinning structure. Afterwards, the text expounds the definition of zero-rating practices and their possible effects, dedicating attention to the speculative nature of the topic. In a third moment, the analysis will scrutinize the arguments presented in the technical note and their respective theoretical forms, at the same time that the competition and consumer issues raised by the document are addressed. Lastly, the survey deals with the problematization raised by the conjunction of that theoretical framework with the peculiarities of the Brazilian legal system. The article concludes that the Brazilian administrative authority sets aside the concept of network neutrality in favour of the network diversity principle, so that there is a conflict with the ex ante regulatory model embodied by Brazil’s Internet Bill of Rights.