Dugie Standeford

LONDON -- EU politicians are "bewitched" by net neutrality, but the current debate won't lead to desired outcomes, said Centre for European Policy Studies Senior Researcher Andrea Renda Tuesday at the Digital Regulation Forum. The subject is still alive and unresolved in Europe and the U.S., said regulators, analysts, companies and a consumer representative.

The European Commission will consider possible regulation of online platforms such as search engines and social media as part of its digital single market (DSM) strategy, it said in an April 21 leaked draft document, an updated version of which was given to us Thursday. Telecom operators increasingly compete with other services that users substitute for traditional e-communications services, such as VoIP, "without being subject to the same regulatory regime," the EC said. Online platforms are playing a more central role in social and economic life, raising concerns about their growing market power, it said. The core issue in the DSM strategy is whether Europe's current "ex ante" regulatory regime will be extended to over-the-top players and/or cable companies, Brussels telecom lawyer David Cantor said. Doing so could put Europe out of touch with the rest of the world, said Bird & Bird (London) information technology and business attorney Roger Bickerstaff.

The European Commission is investigating Google's comparison shopping service and its Android mobile operating system. It alleged Wednesday the company abused its dominant position in the markets for general Internet search services in Europe by favoring its own comparison site over rivals', and that Google may have signed anticompetitive agreements or abused its possible dominant position in smartphone operating systems, apps and services.

The U.S. administration and Congress sent a "clear signal ... they really want to deliver on privacy," Jan Philipp Albrecht, a member of the European Parliament (MEP) from the Greens/European Free Alliance group and Germany, said in an interview. Albrecht, who headed a delegation from the Civil Liberties, Justice and Home Affairs (LIBE) Committee to Washington last month, and several of his colleagues told us they're seeing progress on several privacy-related issues, including safe harbor data transfers to the U.S., intelligence-gathering and, most importantly, legal redress for EU residents whose data is abused by U.S. law enforcement and security services. But MEP Marju Lauristin of the Socialists and Democrats and Estonia said the U.S.'s "active interest" in solving data protection issues as quickly as possible could be sidetracked by the 2016 elections.

Growing pressure from privacy advocates and others for changes to European surveillance laws probably won't accomplish much, attorneys said in interviews. Despite last year's European Court of Justice ruling invalid the EU data retention directive, which required ISPs to store telecom and Internet traffic data (see report in the April 9, 2014, issue), governments continue to propose and enact far-reaching surveillance measures, they said. Whether these new laws mean real change in privacy protections remains to be seen, said Hogan Lovells (London) technology attorney Mark Taylor.

European Parliament efforts to toughen net neutrality rules could be overshadowed by a fight with governments over mobile roaming, one legislator said Thursday. As the Council of Ministers and Parliament prepare to negotiate the "connected continent" telecom overhaul package's provisions on net neutrality and roaming, Member of the European Parliament (MEP) Marietje Schaake, of the Alliance of Liberals and Democrats for Europe and the Netherlands, said she thinks lawmakers will "challenge/fight" the Council's weaker proposals on both topics. The Council proposals, if adopted, could lead to guidelines for national regulators to follow in assessing if net neutrality is breached, the head of the Body of European Regulators for Electronic Communications (BEREC) told us. Meanwhile, the U.K. Office of Communications (Ofcom) announced a sweeping review of digital communications markets that isn't expected to, but could, raise some net neutrality issues.

Zero rating has become a hot-potato issue as the EU struggles to devise a net neutrality policy, telecom industry players and consultants said in interviews. While they agreed that allowing mobile phone customers to access online content without incurring data usage charges or having their usage counted against their data caps is beneficial in developing countries, most said zero rating in European and other developed nations poses barriers to market entry, raises antitrust issues and harms net neutrality. National Economic Research Associates (NERA) Senior Vice President Jeffrey Eisenach, however, cautioned against the "naive" belief that any form of discrimination is bad.

EU governments let the Latvian Presidency begin talks on net neutrality with the European Parliament and Commission ("trialogue"). The net neutrality and mobile roaming proposals are the only parts remaining of the EC-proposed telecom single market "connected continent" legislative package, the Council said Wednesday. The presidency's negotiating mandate covers EU-wide rules on the open Internet, safeguarding end users' rights and ensuring nondiscriminatory treatment in access services, it said. The European Parliament Industry, Research and Energy (ITRE) Committee said it will try to convince governments to "include proper safeguards" for net neutrality. A digital rights advocate called some of the draft "bizarre."

Geoblocking of content across borders is a major obstacle to a digital single market, said Andrus Ansip, European Commission vice president responsible for the DSM. It's a "lose-lose" situation when consumers want to access and pay for creative content but producers won't make it available, he said at the webcast #Digital4EU stakeholder forum in Brussels. Other key impediments to the DSM include outdated copyright laws, fragmentation of 28 different sets of laws and the fear of failure, speakers said Tuesday.

FCC Chairman Tom Wheeler's approach to net neutrality could sway the EU debate, observers said in interviews Thursday, the day after he unveiled his plan in the face of opposition from cable (see 1502040054) and telco ISPs (see 1502040052). The issue on the continent is now in the hands of EU telecom ministers. New compromise language from the Latvian EU presidency will be discussed by a Telecom Council working group Feb. 10, an EU diplomatic source said. The European Commission said it's following the U.S. debate "with great interest."