EU Stands Firm on Net Neutrality, Saying Rules Are Working Well

It's "very clear" Europe has a long-term commitment to net neutrality even as the U.S. prepares to potentially reverse course, said Body of European Regulators for Electronic Communications (BEREC) Chairman Sébastien Soriano Wednesday. On a webcast debriefing of BEREC's Dec. 7-8 plenary meeting, he said one key difference between the U.S. and EU is that institutional setups differ. The U.S. position on net neutrality can change every two years because it's in the hands of a regulator, while in Europe it's set by policymakers, he said. Reopening the discussion about withdrawing the rules "would be totally absurd," said Soriano, who heads French telecom regulator ARCEP (Autorité de régulation des communications électroniques et des postes).

BEREC's work on net neutrality this year included developing common measurement tools to be used by national regulatory authorities (NRAs), and a report on how net neutrality rules and guidelines are working after one year in effect. Michiel Van Dijk, who co-chairs BEREC's net neutrality working group, said the first-year implementation study showed all 28 NRAs are monitoring commercial and technical practices to ensure net neutrality. Twenty-five identified zero rating (ZR) cases, mostly in the music-streaming and social network areas, he said. Only a few formally assessed traffic management practices, but that's growing, he said. BEREC's 2018 work plan includes an opinion evaluating the net neutrality regulation, with a public consultation in Q1 or Q2 and a final report in Q4, Van Dijk said.

The recent report said NRA approaches to "pure" ZR cases (without traffic management concerns) sometimes differ slightly because each market and national circumstance are different, and there have been no formal regulatory actions on pure ZR cases. Net neutrality regulation and guidelines "are implemented adequately" by NRAs, and, are well-suited for analyzing cases now, said Van Dijk, senior enforcement officer, Netherlands Authority for Consumers and Markets.

That an offer appears in one market doesn't mean it's legal in another because the circumstances might differ, Soriano said. NRAs must evaluate each offer case by case, he said. It will take time to build substantive case law on zero rating because there are "50 shades of ZR," he said.

Some other countries are becoming increasingly interested in securing net neutrality. In a Dec. 11 consultation, ARCEP said it believes "internet access does not end with network access, and that other intermediaries may have the power to impede users' ability to access certain content and services on the Web." It's seeking comment on whether devices such as smartphones and tablets could be the "weak link" in achieving net neutrality, with a report due Feb. 15.

The Telecom Regulatory Authority of India (TRAI) also backed net neutrality, saying in a Nov. 28 recommendation that "Internet access services should be governed by a principle that restricts any form of discrimination or interference in the treatment of content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content." That applies to any discriminatory treatment based on the sender or receiver, the network protocols or the user equipment but not to specialized services or other exclusions, TRAI said. BEREC and TRAI have been working together on net neutrality and are considering a memorandum of understanding to reinforce that cooperation, said Van Dijk.

Will U.S. net neutrality reversal affect Europe? With the EC scheduled to review EU net neutrality rules, "it is likely that the US experience in 2018 (assuming the NN rules are rolled back and how things play out with 7 cases awaiting [certiorari] in the Supreme Court) will be a talking point about what to do with the rules in Europe," said Roslyn Layton, American Enterprise Institute visiting scholar and Ph.D. fellow, Aalborg University, Center for Communication, Media and Information Technologies. The longer net neutrality is on the books without specific rules and no evidence of consumer harm, the smarter telcos will be "to communicate that heavy handed rules are not needed," she said. Many European regulators are hardening their approach to go the opposite direction, she said. A U.S. rollback "will likely be most salient for UK in the short run as well as [Deutsche Telekom] in Germany, but all nations will be watching," she said. "Recall that Switzerland manages the issues with a code of conduct and an arbitration board, and the sky has not fallen."

The expected FCC vote will have minimal impact in the EU, at least in the beginning, telecom consultant Innocenzo Genna blogged Tuesday. The European net neutrality framework (Regulation 2120/2015) "is quite recent and it would be politically inconvenient to ask for a repeal," said the adviser to alternative telecom players. Its foundation is solid since it was adopted after extensive debate among EU institutions, which agreed on a fair balance, he said. No one will be keen to reopen the matter, at least until the end of this five-year EU term, he added.

Even stakeholders that oppose net neutrality rules, such as incumbents like DT, may be hesitant to back a reform "which is so much Trump-branded" and equally opposed by civil society, Genna wrote. Operators are likely to see what happens in the U.S. market and hope that EU bodies after the 2019 elections will be more inclined toward this type of deregulation, he said: Reopening net neutrality "may be a risk for everyone, because with new European institutions no one can predict whether new rules would be more or less stringent [than] the current ones."

Other net neutrality news Wednesday: on Disney possibly buying much of Fox (see 1712130010), on state attorneys general (see 1712130051), on the FCC's draft order (see 1712130053) and on Capitol Hill (see 1712130056).