A petition challenging restrictions on Internet usage approved by Sutel was brought before the Costa Rican Constitutional Court by the National Ombudsman’s Office (Defensoría de los Habitantes) earlier this month.

The court has asked for further clarifications before reaching a decision as to whether to suspend or uphold the new policy, called “uso justo” or “just use”, approved by the telecommunications regulatory body (Sutel).

The measure to lower Internet speeds on post-paid mobile Internet plans whose users go beyond a certain usage limit during their monthly billing period was approved for implementation by Sutel three years ago as a stop-gap measure to try to regulate usage, ensure promised speeds to different users, and prevent abuses by certain heavy users like Internet cafés. The proposal was met with heavy criticism, and has not been implemented until now.

At present, 89 percent of Costa Ricans’ Internet access is through mobile service. This is due in part to the lack of fixed Internet options, especially in rural or difficult-access locations.

It is unfair that operators that don’t offer anything other than mobile Internet plans in certain areas, then seek to restrict the usage of such plans when they are consumers’ only option, said the Ombuds office.

At the time Sutel initially approved the speed restriction measure, the body charged Internet providers with taking steps to increase Internet access. The Ombudsman office says these steps to remedy the clogged Internet system have not been addressed adequately or implemented despite the passage of three years, and that lowering users’ Internet speeds is unacceptable and a backwards step for the country’s access to information and every day communication.

The Ombudsman fears the measure to restrict Internet speeds, rather than be used as a temporary measure, will instead become a permanent feature, taking the place of fundamental changes that need to occur to grant broader, stable Internet access.

The Ombudsman asked the Costa Rican Academy of Science to submit their professional criteria on the restriction. “The policy thwarts the use of Internet, since the poor connections negatively affect its use. This [policy] does not meet the current technological needs, and deters the country’s competitiveness, its development, its education, and its economy, among other things,” said the Academy in statements to the court.

Currently, three service providers – Claro, Kolbi and Movistar – have implemented the restrictions on their postpaid mobile Internet plans. Once users reach their usage quota, their speed is reduced to a paltry 128kbps for the remainder of the billing period, which is insufficient to access most types of applications and online services.

The Academy of Science went on to say that, “The imposition of a 128 kbps flat speed upon arriving at the maximum consumable data in the month for all plans does not simply mean a slower navigation speed, it is essentially the equivalent of disconnecting the user.”

The Ombudsman expressed in their complaint to the court that, “Access to the Internet has been declared as a fundamental right, indispensable to exercise the freedom of thought and expression enshrined in Article 13 of the American Convention on Human Rights, and therefore … Internet access must be guaranteed and protected.”

This view of Internet as a right differs from Sutel’s, which sees access to Internet as a matter of  making available a telecommunications service, which the Ombudsman’s office said has no legal merit as a working definition.

The National Academy of Science also criticized Sutel for not informing the public about their decision, despite its impact on people’s daily life, saying the slow speed is “unacceptable and anachronistic … as new technologies have minimum requirements for their use and smooth operation that do not conform to Sutel’s proposal.”

The petition to the constitutional court to suspend the current restrictions also stressed that countries with many more users than Costa Rican and with the same infrastructure have speeds that are up to 10 times higher, and the country’s National Telecommunications Development Plan, which Sutel is a proponent of, identifies the need to provide broadband connections to users rather than implementing policies that obstruct the country’s technological development, said Pedro Leon Azofeifa, president of the National Academy of Science.

The ombudsman’s office also found fault with the policy which, while claiming it will improve Internet speeds, in fact reduces users’ speeds, “indicating that operators do not have sufficient capacity in their networks to effectively provide the speeds they offer in their marketing.”

In addition, the claim says that “real mechanisms or projects are not taken to improve infrastructure; plans only refers to changes in the short and long term without defined dates or commitments on the part of the operators.”

Stay tuned for the high court’s decision on this important connectivity issue.