Towards a more open Internet: the BEREC’s guidelines on Net Neutrality

Pubblicato: 21 Ottobre 2016

Scritto da Arianna Alessi

Introduction

On 30 August 2016, the Body of European Regulators for Electronic Communications (BEREC) has published final official guidelines on the implementation of EU rules on Net Neutrality[1], embodied in Regulation 2015/2120/EU[2] adopted on 25 November 2015 and applicable as from 30 April 2016.

The guidelines, drafted in close cooperation with the EU Commission and after having consulted stakeholders, have clarified some vaguely worded provisions that could have been exploited by Telecoms (Tlcs), thus resulting in an unjustified impediment to free access to internet services for consumers. These guidelines are specifically addressed to National Regulatory Authorities (NRAs), in order to support them in the assessment of agreements and commercial practices falling within the scope of the abovementioned Regulation, as well as in the attainment of consistent decisions and effective enforcement actions.

Under the Net Neutrality Regulation, indeed, NRAs are responsible for monitoring the correct application of the European rules and for protecting the right of consumers to open Internet access vis-à-vis potential opportunistic behaviour of Telecoms.

The evolution of the European regulatory framework on net neutrality

The issue of an open and neutral character of the Net was already raised in 2002, when the Commission presented the first telecoms framework, aimed at ensuring high-quality goods and services at affordable prices to consumers, thereby promoting effective competition in the internal market.

The amendments, introduced in 2009[3] and transposed into national legislation in 2011[4], strengthened the commitment to promote “the ability of end-users to access and distribute information or run applications and services of their choice” (Article 8(4)(g) of the Framework Directive[5]). This is said to represent a definition of “net neutrality”.

Already at that time, the essence of the net neutrality debate revolved around the need to preserve the openness of this platform and to provide highly innovative services, whilst guaranteeing the respect for fundamental rights, such as freedom of expression and freedom to conduct business.

In September 2013, the Commission presented a proposal for a telecoms single market (so-called “Connected Continent” Proposal[6]), which brought about many legislative changes to several regulations that would have pushed the telecoms sector into the Internet Age, by encouraging the adoption of new business models and investments in the digital context and by removing barriers among Member States to the building up of a common market for telecoms.

Thanks to the boost given by the Commission’s Strategy for a Digital Single Market of May 2015[7], these goals have been partly accomplished in November 2015 with the enactment of Regulation 2015/2120/EU on net neutrality, whereas other important measures are still under discussion.

The EU rules on net neutrality and the improvements brought by the BEREC’s guidelines

The Net Neutrality Regulation enshrines the principle of net neutrality, by providing that every European citizen must be able to have access to the open internet and all content and service providers must be able to provide their services via a high-quality open internet[8].

Blocking, throttling (e.g., slow down lawful traffic) and discrimination of internet traffic by Internet Service Providers (ISPs) is not allowed, save for three exhaustive exceptions. All traffic must be treated equally, in the sense that there can be no prioritisation traffic in the internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to objectively justified technical requirements, which must be independent of the origin or destination of the traffic and of any commercial considerations. It is possible to offer specialised services only if there is sufficient network capacity to provide them in addition to any internet access service and if such a provision does not affect the availability or general quality of internet access services for end-users.

In the light of the foregoing, how have the BEREC’s guidelines improved the existing provisions?

Having found in the original text some loopholes to be filled, the guidelines reiterate the concept that blocking or slowing down of Internet traffic are prohibited, except where necessary, these exceptions being limited to: traffic management to comply with a legal order, to ensure network integrity and security, and to manage congestion, provided that equivalent categories of traffic are treated equally. Therefore, traffic management practices are permitted “under limited circumstances”, that is in so far as they are applied in a reasonable, non-discriminatory and proportional manner, without resulting in an undue block, interference or slowing down of services and apps. In addition, traffic management practices cannot go beyond what is strictly necessary for the pursuit of their purposes.

The guidelines provide examples of what could be considered as a “specialized service” under the Regulation, whose provision is made conditional upon the fulfilment of certain quality and capacity standards. Legitimate specialized services include VoLTE (“Voice over LTE”, high-quality voice calls), linear IPTV services and remote surgeries, operating separately from the Internet.

Finally, with regard to “zero-rating”, the free connectivity offer of specific services beyond the data cap established by the monthly subscription, the BEREC makes clear that it is prohibited as long as all applications are blocked or slowed down once the data cap is reached. However, such practice should be assessed on a case-by-case basis by NRAs, taking into account factors, such as the ISP’s market share, effects on app choice and the scale of the practice.

The stakeholders’ reactions

European Commission Vice-President Andrus Ansip, responsible for the Digital Single Market, and Commissioner Günther H. Oettinger, in charge of the Digital Economy and Society, welcomed the publication of BEREC’s guidelines, since they do not conflict with the aim and content of the EU rules on net neutrality, rather they avoid fragmentation in the single market and create legal certainty for businesses, thus favouring their cross-border operation[9]. Other net neutrality advocates, such as the organization for European Digital Rights (EDRi), have expressed their support to the guidelines regarded as a milestone for the open internet in Europe, by claiming a triumph for the European digital rights.

On the other side, Tlcs are deeply disappointed by a very severe legislative framework which leaves little room to investments and shows complete disregard to the requests they put forward in July through the “5G Manifesto”, where more than 20 national telecoms said that they would not introduce high-speed 5G networks unless BEREC took a softer approach to net neutrality. Indeed, in the view of ETNO, the European association representing the biggest national telecoms, “a restrictive interpretation of traffic management rules would hamper the telcos’ ability to meet network requirements in a 5G-society”.

Notwithstanding these “threats”, both the European Parliament and the EU telecoms regulators have continued to follow their robust and legal-based direction, certain that this will enhance Europe’s leadership in the digital economy.

National regulators, which contributed to the drawing-up of the guidelines, have maintained that, far from feeding a war between Telcos and OTTs[10], this regulatory framework constitutes the best means to achieve a fair equilibrium between consumer protection and ISPs’ freedom to provide services without incurring in excessive burdens, since the obligations placed upon them are counterbalanced by some flexibility. Furthermore, NRAs themselves are allowed to exercise their monitoring and enforcement powers in a way compatible with national specificities.