EU Net Neutrality Work Progresses, but Some Opposition Remains

BEREC is reviewing stakeholder responses to its consultation on how its net neutrality guidelines are working, the office emailed. The comments will feed into an opinion to the European Commission, it said. The findings will be discussed at the Oct. 4-5 BEREC plenary meeting, after which BEREC will draft an opinion and consultation report for its Dec. 6-7 meeting. The final documents are expected to be published shortly thereafter, it said. On Aug. 6, BEREC announced it gave two companies a contract to develop a net neutrality measurement tool.

European telcos, mobile operators and cable providers sent a May 17 message to EU regulators. They said they're committed to safeguarding net neutrality and are "tirelessly working" to comply with the EU Open Internet Regulation, but "BEREC guidelines currently create regulatory uncertainty." The European Telecommunications Network Operators' Association, GSM Association and Cable Europe urged BEREC to realign the guidelines with the regulation by getting rid of preset parameters and restrictive interpretations of the legal text. National regulators should judge commercial offers case by case and, if quality of internet access service isn't affected, should recognize network management as an essential resource, especially in relation to the network slicing needed for 5G, they said. Providers should explicitly be allowed to offer multiple internet access services, and arbitrary interpretations of the guidelines' transparency and redress provisions should be stricken, they said.

December's decision reversing the FCC stance on net neutrality was hailed by some U.S. ISPs as a way to revive network investment but received "far more hostile opposition" in the court of public opinion, regulator Arcep (Autorité de régulation des communications électroniques et des postes) noted in its June 5 report to Parliament on the state of the internet in France. The various challenges to the FCC reversal help "illustrate public interest in upholding net neutrality" and make it difficult "to predict what the American framework will look like in the medium term," it said.

In Europe, however, regulators are "fully committed to enforcing the Open Internet Regulation," as is France, said Arcep. The organization published a net neutrality plan last year and aims to obtain the most detailed picture possible of what access providers are doing about business practices, traffic management, specialized services and transparency obligations. It put in place tools such as information-gathering campaigns and monitoring of the national market, and is supporting development of a traffic management detection app designed by Northeastern University. Once in place, the tool should help users wanting to test their line to detect some traffic management practices that could breach net neutrality rules, Arcep said.

Last year saw the spread across Europe of zero-rating offers that let subscribers use particular online services without the traffic being counted against their allowance, Arcep said. EU rules don't bar zero-rating per se but recommend it be investigated case by case, it said. But gauging whether a particular zero-rating service violates the regulation is challenging, so "there is an especially acute need for the value-added of increased cooperation within BEREC to obtain detailed analyses of these products."

Elsewhere in the world, "efforts to protect net neutrality continue to make strides," Arcep said. In June, BEREC and the Telecom Regulatory Authority of India (TRAI) agreed to work together on how to measure and monitor net neutrality, identify breaches of the core principles, and determine the impact of commercial practices on the open internet. In a July article in Arcep's The Post newsletter, TRAI Chairman R.S. Sharma said it's important that the two bodies come together on net neutrality, "especially due to the interplay of opposing tensions inherent in the policy."

Net neutrality is hard to describe with a precision that would stand up to legal scrutiny, Sharma said. "Any deviation from the principle is blasphemy to its supporters, but the policy must admit exceptions in practice." There may be a desire to allow exceptions where the objective is benevolent, but the same exception could, and often does, lead to "pernicious outcomes" in identical cases, he said. The EU-India collaboration is "necessary not only for enforcement actions but also for developing policy more suitable for pipes that are no longer dumb."

The MOU -- and Europe's approach to net neutrality in general -- sparked strong words from Danish telecom consultant John Strand. He emailed that BEREC's net neutrality process is a "black box" that lacks transparency; the office is refusing to answer several "simple questions" about its process; and it ordered a net neutrality measurement tool before it evaluated the effectiveness of the regulation and its guidelines, making its current consultation an exercise in soliciting "more support for its pre-determined outcomes."

BEREC "is looking for legitimacy for its extreme approach" and hopes that by aligning with India, it will signal India's 1 million net neutrality activists they're welcome to weigh in on Europe's regulatory proceedings, Strand told us. India "has the world's most restrictive net neutrality policy," which completely bans differential pricing, and outlaws any type of zero rating or other flexible pricing practices, he said.

European Commission President Jean-Claude Juncker "confirms that BEREC agreement with Indian telecom regulator could violate EU law" by making foreign policy in telecommunications, a Strand Consult research note said. The EC, however, emailed Friday that "no such statement has been made and we disagree strongly with the interpretation made by Mr Strand of the Commission's reply." Under EU rules, BEREC is allowed to cooperate with authorities in third countries, but such international activities must be in line with EU policies on external relations and in the area of e-communications, an EC spokeswoman said. The MOU with TRAI doesn't commit the EU to obligations so doesn't breach those principles, she said.