Abstract
Constitutional "equality" in regard to the use of "communications" may matter particularly when network operators provide Internet access services to platform operators that supply various content and applications online to the general public. It is, above all, difficult to judge whether the act of favoring some traffic over other traffic in the provision of Internet access services (i.e., "pay for priority") would be considered "discrimination" prohibited under the Constitution of Japan. The act of "pay for priority" encompasses acts of favorably setting bandwidth for transmission over subscriber lines, routing as well as adjusting the traffic (hereafter, "prioritized routing"), and fortifying transmission power in backbone networks. Among these activities, it would be fair to assume that the ultimate form of "discrimination" will culminate in the act of prioritized routing. Even though prioritized routing is implemented subject to the payment of additional rates by network users, this fact will not, in itself, legitimize the act. It is conceivable that varied handling of "different services" is needed in order to avoid "discrimination." When considering Internet access services dealing with a variety of information transmitted over networks, however, it is extremely difficult to objectively identify some "like services" on the basis of reasonable criteria. It should also be noted that rigid equality will be required in handling Internet access services in light of the fact that they are matured enough to be considered a "fundamental communications service" essential to our daily lives. Taking these points into account, it would be fair to conclude that "pay for priority" in prioritized routing is essentially unfair even with additional payment and should be considered "discrimination" unless otherwise properly justified.
