Out-Law News | 29 Aug 2016 | 10:20 am | 2 min. read
The Body of European Regulators of Electronic Communications (BEREC) earlier this summer published draft new guidelines setting out how EU net neutrality rules should be implemented by national telecoms regulators in the trading bloc.
However, think tanks, including the Information Technology and Innovation Foundation, International Center for Law and Economics, and academics, predominantly from US universities, have issued an open letter (3-page / 87KB PDF) criticising some aspects of BEREC's plans.
EU net neutrality laws that came into force in April give internet users the right to "access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service". Internet service providers (ISPs) must "treat all traffic equally".
Notwithstanding those requirements, however, the regulations permit ISPs to implement "reasonable traffic management measures" which are "transparent, non-discriminatory and proportionate", such as blocking or throttling the delivery of content requested by users of their network, for reasons such as preserving the integrity and security of the network or combatting network congestion.
Although the EU net neutrality rules prohibit paid prioritisation of content delivery online, they do not prevent ISPs from entering into agreements to deliver certain content, applications or services at "optimised" quality in certain circumstances.
That optimisation must be "necessary … to meet requirements of the content, applications or services for a specific level of quality" and the provision of such services must have no detrimental impact on "the availability or general quality of internet access services" ISPs otherwise provide.
In their letter the think tanks took issue with the tough stance BEREC has taken in its draft guidance in relation to so-called "zero-rating practices". The term applies to cases where ISPs omit internet users' use of specific applications or categories of applications when applying caps on data use. The think tanks said BEREC should not seek to "ban" zero-rating and other "specialised services".
"We believe ensuring a flourishing, open Internet where innovation, commerce, and expression thrive requires nuanced policy approaches rather than categorical bans on certain types of behaviour, as have been proposed by some of the most vocal participants in this proceeding," the open letter said. "Net neutrality, and surrounding issues like zero rating and specialised services, are not black and white: both sides of the debate have legitimate points, and the best solution from a consumer and innovation perspective involves trade-offs and compromise."
"Guidelines should not allow firms to use connectivity or content business models in anticompetitive or otherwise harmful ways. But specialised services and zero rating, even paid or applications-specific arrangements, can benefit consumers and competition. No evidence suggests these practices have harmed consumers. Rather than ban these innovations, better to follow a permissive, case-by-case approach informed by economic analysis, allowing for experimentation with beneficial forms of pricing or traffic differentiation," it said.
In its draft guidance BEREC said it is more likely that ISPs that apply zero-ratings to individual applications would not comply with the net neutrality regime than if zero-ratings were applied to a broader category of applications. It said zero-rating or similar practices on a large scale, particularly where "few alternative offers" are available in the market, "is more likely to limit the exercise of end-user rights".
The think tanks said, though, that the "allowances" for specialised services and zero rating in the EU's net neutrality regulations "are not 'loopholes' to be filled, but recognition of the need for optimistic oversight". It called on BEREC to "maintain a permissive case-by-case approach to zero rating and allow flexible use of specialised services".