EU Parliament Net Neutrality Statement Said Positive, But ‘Wait and See’ Approach to More Regulation Is Panned

The original resolution on the open Internet and net neutrality in Europe welcomed the April 19 EC statement on net neutrality and agreed on the need to preserve an open and neutral Internet. It said “there is no clear need for additional regulatory intervention” until EU telecom authorities complete their investigation into issues such as barriers to switching service providers, blocking, throttling, transparency, quality of service and competition, an inquiry called for by the EC. The resolution also urged EU governments to come up with a consistent approach on net neutrality.

The resolution recognized that “reasonable traffic management is required” to ensure that end-users’ connectivity isn’t disrupted by network congestion, but said any such management must be transparent. Quality of service, ease of switching and transparency must be necessary conditions of net neutrality to assure end-users of freedom of choice and requests, it said. It asked the EC to consider additional guidance on net neutrality to achieve competition and freedom of choice for consumers.

Fierce negotiations in the industry committee meant several compromises, La Quadrature spokesman Jérémie Zimmermann said. The report now says net neutrality is a “significant prerequisite for enabling an innovative internet ecosystem” and formally recognizes that the “open character has been a key driver of competitiveness, economic growth, social development and innovation which has led to spectacular levels of development in online applications, content and services,” said EDRI Advocacy Coordinator Joe McNamee. The text also explains the “serious risks” of non-neutrality for competition, innovation, media pluralism and confidentiality of communications, he said.

Compromise language also rejects the big telco view that “transparency” will solve all net neutrality problems, saying instead that it is nothing more than “among the minimum necessary conditions,” McNamee said. Another positive development was that the panel heeded civil society criticism that references to net neutrality only covered “legal” content, he said. Internet access providers aren’t judges, courts or police, and they must treat all content equally, he said. The adopted text abandons this “confusing and counterproductive wording,” he said.

The resolution “commits the EU Parliament to key issues,” said La Quadrature’s Zimmermann. It’s a “strong political statement in favor of net neutrality” that carries a useful definition of the principle and of network management practices that are detrimental to users’ freedoms and competition, he said. It also asks the EC to “move past its failed ‘wait-and-see’ approach” by gauging the need for further regulation within six months of the regulators’ study on discriminatory ISP practices, he said. But on the downside, it stops short of asking for immediate legislative action to protect net neutrality and for sanctions against ISPs who restrict Internet access, he said.

Ultimately, the resolution supports that EC wait-and-see approach, McNamee said. “This is particularly strange” since the industry committee spent a lot of time in recent years trying to help fix the problems caused by the failure of that policy in relation to mobile data roaming, he said. “I'm not aware of -- and I haven’t met anyone in the Parliament who is aware of -- a ‘wait and see’ approach in the telecoms sector that proved to be the right choice,” he said in an email.

EDRI and La Quadrature also complained that the compromise includes a loophole that could be interpreted as accepting access restrictions on the mobile Internet on the pretext of congestion. The provision, on reasonable traffic management, says operators may, subject to regulatory scrutiny, use procedures to measure and shape Internet traffic in order to maintain networks’ functional capacity and stability and meet quality of service requirements. It urges authorities to impose minimum QoS standards, and says ensuring quality in time-critical service traffic “shall not be an argument for abandoning the best-effort principle.” Read in isolation, that sounds like a license for access providers to manipulate traffic however they wish, McNamee said. But read in conjunction with the rest of the text, it has a narrower meaning that covers exceptional circumstances rather than a “non-neutrality-by-default situation” which would, in the report’s words, be a “serious risk,” he said.

Although rather weak, the adopted resolution is a “political commitment” from Parliament in favor of net neutrality that aims to stop telecom operators from restricting access, Zimmermann said. “Pressure is increasing on [Digital Agenda] Commissioner Neelie Kroes” and regulators to come up with further legislation, he said.

ITRE has asked the EC to monitor the development of traffic management, ensure the consistent application and enforcement of existing EU rules and assess whether further regulation is needed in light of the Body of European Regulators for Electronic Communications’s fact-finding probe, said EC spokesman Olivier Bailly. “This is exactly what the Commission is doing,” he said. If significant and persistent problems are substantiated, the EC will decide if more stringent measures to achieve competition and consumer choice are needed, he said. Overall, the EC “welcomes the importance” the European Parliament attaches to net neutrality, “which is at the heart of the Digital Agenda objectives,” he said.

Lawmakers have confirmed that effective competition is of “paramount importance to guarantee that European consumers benefit from freedom of choice” online, said the European Competitive Telecommunications Association. ECTA “joins the strong call of the Parliament” to the EC and national governments to ensure that telecom regulations are enforced to achieve that goal, it said.

The moves in Europe are being watched closely in the U.S. where net neutrality rules were approved by the FCC last year and will take effect Nov. 20. The rules still must survive an industry challenge in the U.S. Court of Appeals for the D.C. Circuit.

Free Press Policy Counsel Chris Riley said Europe already has relatively strong net neutrality protections. “Net neutrality is important worldwide, and while we support it universally, it is tough to compare the EU to the United States, because many countries in the EU have meaningful open access rules that have created a very different competitive playing field,” Riley said.

"When the FCC adopted its net neutrality regulations, this was a fairly rare case of the U.S. adopting a more regulatory stance than Europe’s,” said Free State Foundation President Randolph May. “But Europe being Europe, the odds are, that to its detriment, Europe would catch up. … The U.S. position on Internet regulation makes it more difficult for the U.S. to argue against Internet regulation in other countries. And, as importantly … I am not aware that there has been any demonstration that EU Internet providers have adopted ‘non-neutral’ practices that have harmed consumers.” NetCompetition Chairman Scott Cleland said “the bottom line” is “the EU again rejected an interventionist net neutrality policy and maintained its current policy, which relies on market forces, competition and transparency, to ensure an open Internet.”