EU Final Net Neutrality Guidelines Prompt Relief From Most But Telcos

Final net neutrality guidelines issued Tuesday by EU telecom regulators haven't changed significantly from the draft version published in June (see 1606060005), the Body of European Regulators for Electronic Communications said at a Tuesday media briefing. BEREC received an unprecedented more than 408,000 comments, said Chairman Wilhelm Eschweiler. Around one quarter of the paragraphs in the draft were modified, but changes to controversial provisions on zero rating (ZR), traffic management and specialized services were clarifications rather than major shifts in approach, he said. There were competing arguments, with some wanting the guidelines to be stronger and others pushing for them to be weaker, which indicates BEREC struck the appropriate balance in many aspects, said Frode Sørensen, Norwegian Post and Telecommunication Authority senior adviser.

The guidelines don't create new rules but provide practical guidelines for consistent implementation by national regulatory authorities (NRAs) of the net neutrality rules contained in the EU telecom single market regulation, said Eschweiler. The guidelines cover internet access services and specialized services, but not services that aren't publicly available, IP interconnection services or virtual private networks.

The final version clarifies the regulation doesn't require operators to seek advance permission for commercial practices, traffic management or specialized services, said Sørensen. As with the draft, the version doesn't ban ZR per se but says some practices will clearly infringe, such as where all applications are blocked except ZR apps, he said. Other practices are less clear, and NRA will have to assess them case by case, he said. The guidelines set out assessment criteria for determining the legality of ZR practices.

Traffic management, if handled independently of applications and end users, normally will be considered to be treated equally, said Sørensen. The regulation allows "reasonable" traffic management, which may be used to differentiate between "categories of traffic," and it also sets out specific exceptions that are allowed under stricter conditions, he said. BEREC slightly modified the text on reasonable traffic management and on specialized services, which could include Voice over LTE or real-time remote health services, he said.

The regulation and guidelines "avoid fragmentation in the single market, create legal certainty for businesses and make it easier for them to work across border[s]," said European Commission Vice President Andrus Ansip, responsible for the digital single market, and Digital Economy and Society Commission Günther Oettinger. They also ensure advanced technologies such as the IoT and 5G applications are developed now and flourish in the future, the officials said.

Civil society and consumer groups cheered the guidelines, but big telcos said they failed to address their concerns.

“Europe is now a global standard-setter" in the defense of an open, competitive and neutral internet, said European Digital Rights Executive Director Joe McNamee, who praised regulators for refusing to "bend to the unreasonable pressure" placed on them by the big telecom lobby. Civil society must stay vigilant to ensure the new rules are enforced, he said. European Consumer Organisation Director General Monique Goyens applauded that ZR, the practice of counting traffic of specific apps against customer's monthly data limit, "will now be forbidden." Restricting ZR is necessary to avoid allowing specific services to be privileged at the expense of more innovative newcomers, she said.

Free Press Senior Strategy Director Timothy Karr warned that "online gatekeepers never give up. Despite last year's Net Neutrality victory in the United States, telecommunications companies have spared no expense on efforts to bend the rules in their favor and weaken enforcement.”

European telcos said they stand behind the open internet principles, but "there is no contradiction between safeguarding consumers and fostering Europe's innovate potential." The European Telecommunications Network Operators' Association said it will analyze the guidelines for consistency with the regulation. But it said "most of the concerns outlined and described by industry experts have not been taken into account" in the final document. Those concerns were in a July 18 ETNO-GSMA response to BEREC. The Information Technology and Innovation Foundation said it's "good news" that BEREC didn't categorically ban ZR or other practices, but the overly prescriptive guidelines will likely diminish competitive, pro-consumer broadband-based offerings.

“Kudos to Berec" for resisting strong pressure from many big European and U.S. telcos, wrote telecom consultant Innocenzo Genna, who advises smaller players. BEREC hasn't prohibited either ZR or traffic management but set out a detailed list of conditions and circumstances national regulators must assess in deciding whether such practices are allowed, he said. Practices that are agnostic, such as an ISP using ZR to favor music streaming or VoIP in general, as opposed a particular service such as Spotify or Skype, should pass muster, he said.

One wonders why big telcos are annoyed by the guidelines when BEREC hasn't actually banned anything, Genna wrote. These companies -- dominant fixed and mobile operators but not mobile virtual network operators or fixed alternative players -- had hoped to have a free hand in discriminating in internet services and traffic but were stymied by the European Parliament and Council, he said. The telcos then hoped BEREC would simply allow the practices, but it instead left it to national regulators to decide which are permissible, he said.

BEREC will now encourage NRAs to share their experiences with implementing the guidelines, said Sørensen. National authorities will have to submit their first update to BEREC and the EC by June, and future BEREC reviews and updates will occur as appropriate, he said. Adoption of the guidelines isn't the end of the discussion on net neutrality but the starting point for the next phase, said Eschweiler.