Abstract
In cases where the general public utilizes “communications” as stipulated in Paragraph 2, Article 21 of the Constitution of Japan, it can be understood that not only the public authorities but also communications service providers are prohibited from “discriminating” against or in favor of specific users of communications services, as per Paragraph 1, Article 14 of the Constitution, given that both are theoretically required to ensure “secrecy of communications.” It is instructive that there have been many cases in the United States of network operators handling certain platform operators’ transmissions of content or applications in a discriminatory manner. This has led to the establishment of the Open Internet Order by the Federal Communications Commission (FCC), which will provide some insights in considering constitutional equality in the utilization of communications. While it is difficult to explicitly identify the legal conceptual purview within which network operators are required to handle platform operators equally, it is useful to consider specific discriminatory acts of network operators. In this connection, it should be noted that the Open Internet Order regards the act of favoring some traffic over other traffic in the provision of Internet access services (i.e., “pay for priority”) as “discrimination”, whereas the acts of charging subscribers based on bandwidth consumed (i.e., “tiered or usage-based pricing”) and properly controlling bandwidth during periods of congestions (i.e., “bandwidth control”) are regarded as reasonable.
