Out-Law News 3 min. read

Net neutrality proposals could create two separate internets, say telecoms trade bodies

Telecoms companies have raised concerns about how plans to ensure 'net neutrality' in the EU could impact on their business models.

The European Telecommunications Network Operators' Association (ETNO) and the Global System for Mobiles Association (GSMA) have written to members of the European Parliament's Industry, Research and Energy (ITRE) Committee concerned about proposals which they believe would effectively create two separate internets.

The ITRE Committee is set to vote on legislative proposals to regulate the 'open internet' tonight. Under those plans content providers and electronic communications providers would be prevented from concluding "specialised services agreements", where content providers would pay to ensure that their content is delivered in accordance with "defined levels of quality of service" where those agreements impaired "the general quality of internet access service".

A 'specialised service' is defined, under the proposals, as being content provided with "enhanced quality" over a communications network but which is "provided over logically distinct capacity" on that network and which is in no way a substitute for an "internet access service", which is itself defined as a " publicly available electronic communications service that provides connectivity to the internet".

"Such services shall only be offered if the network capacity is sufficient to provide them in addition to internet access services and they are not to the material detriment of the availability or quality of internet access services," according to the proposals before the ITRE Committee. "Providers of internet access to end-users shall not discriminate between such services."

ETNO and GSMA have raised concern about the proposals which they state will mean having to separate how they provide certain kinds of content to consumers from others. Meeting this obligation has raised concern among the telecoms industry about the costs involved to them and their ability to generate value from their service offering to consumers.

ETNO told Out-Law.com that it supports the 'open internet' principle but said that it could not be advanced to the detriment of the freedom of companies to operate their business and to innovate.

"We fear that, if the most restrictive views on open internet prevail, there will be a significant reduction of users’ choice and a potential harm to EU businesses competitiveness," Luigi Gambardella, ETNO's executive chairman, said in a statement.

"Current EU legislation provides that citizens must be able to 'access and distribute information or run applications and services of their choice' on the internet. This principle must be safeguarded and ETNO stands behind the principle of an open internet. In this context, we are concerned about the position of those who believe that specialised services should be completely separated and should have no influence at all on the capacity available to other internet services," Gambardella said.

"Establishing such a principle would affect the provision of essential innovative services such as telemedicine or e-education, but it would also affect existing services such as Virtual Private Networks (VPNs) for business, IP-TV and telepresence," he added.

Gambardella also said that "far-reaching restrictions on traffic management" that the ITRE Committee will consider before its vote tonight would make it "almost impossible" for internet service providers (ISPs) to manage their networks efficiently. He said that the proposed new rules on traffic management would "contribute to increase the already high regulatory burden imposed on European companies".

'Traffic management' is a term used to describe the activities ISPs undertake to manage the transmission of data and other content over their networks. ISPs will often slow down or even block consumers from accessing particular kinds of content, such as high resolution videos, during peak use times to ensure that other users can access less bandwith-consuming services. ISPs may also engage in traffic management so as to comply with legal obligations, such as preventing users from accessing child abuse images.

The proposed EU law reforms would allow ISPs to agree "data volumes or speeds" of their internet service to consumers with those customers, but they would be subject to a general ban on the use of traffic management techniques that block, slow down, alter or degrade content, applications or services consumers request within the scope of those contractual limitations.

A number of exceptions to the general rule would allow for "transparent, non-discriminatory, proportionate and necessary" traffic management to be conducted in certain cases, such as to implement a court order, preserve network security and to deal with network congestion.

If the ITRE Committee votes to back the current proposals the plans would go before all MEPs in a vote likely to take place in April. Reforms cannot happen without the backing of both the European Parliament and the Council of Ministers. The Council is expected to agree on an initial position on its view of the open internet debate at a meeting in June.

Gambardella said: "If the most restrictive views prevail, the access of European users and businesses to our services will be affected. This would turn into a dangerous situation, in which the European digital economy will suffer and EU businesses will be put in a difficult competitive situation with respect to other areas of the world."

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