On August 30, the Body of European Regulators for Electronic Communications (BEREC) published their final Guidelines on net neutrality, as mandated by the Connected Continent Regulation (Reg. 2015/2120). The Guidelines do not crate new rules but interpret the ones contained in the Regulation. Their importance lies in the fact that national regulatory authorities (NRAs) have been left in charge of the implementation and monitoring and this is intended to help them apply the Regulation and ensure a degree of uniformity.
A draft version had been made available on April 6 (I commented on it in a previous post) and the final text is a result of an extensive public consultation. I emphasised earlier that, although the Draft supports net neutrality in principle, it also allows zero rating, traffic management and specialised services under controlled conditions, which is a good starting point. The final version remains on the same position.
Public debate so far has been roughly divided into two camps: Internet Service Providers (ISPs) have argued for weak regulation while general public has been leaning towards a strong one. Although the final version does reinforce the open nature of the Internet, it does leave a lot of manoeuvring space for ISPs, essentially crating a relatively weak and rather bureaucratised set of rules that depends on NRA scrutiny.
Although, some comments seem to be claiming that “loopholes” left in the Regulation have been tightened, this is, in fact, not the case. The Guidelines allow for flexibility: zero rating, traffic management and specialised services, all remain allowed. The ISPs rely on all three as zero rating and specialised services are increasingly seen as lifelines in an industry where investing in new technology is prohibitively expensive but very risky and subject to competition from unregulated over-the-top (OTT) providers.
In respect of zero rating, which is not specifically mentioned in the Regulation, BEREC recognises that end users’ choice may be materially restricted. Commenting on Article 3(2) of the Regulation, however, the Guidelines do not call for their outright prohibition. Recitals 44 and 45 simply say that providers’ respective market positions are to be taken into account as well as the extent to which the users’ choice is actually been restricted. This is a regime which leaves balancing to the NRAs. The only situation in which zero rating is prohibited (Recital 55) is where, having reached the data cap, all applications but the zero rated ones are throttled.
The BEREC position on traffic management is dependent on the rather specific and relatively clearly worded limitations already imposed in the Regulation. The basic position here is that traffic management is allowed under controlled conditions. The main impression gained is that the Guidelines are descriptive, giving examples of what might constitute typical attacks or allowed measures.
Finally, specialised services are also allowed in Regulation Article 3(5) under NRA-controlled conditions and the Guidelines do not change the position in that article dramatically. Paragraph 111 comments that it is necessary for a specialised service to actually require a “level of quality that cannot be assured over a IAS”, that is to say, specialised service must be the only option for delivering the electronic product adequately. Paragraph 112 emphasises that defining a fixed list of specialised services is not necessary considering the fast pace at which technology develops.
In summary, the present Guidelines offer a basic net neutrality protection, preventing the ISPs from discriminating between apps and services flowing through the basic pipe. At the same time, they allow reasonable traffic management and specialised services, which is a positive development. More worrying is the fact that both are subject to far too many administrative hurdles and the uncertainty of regional NRA scrutiny. In my own view, net neutrality regulation was not necessary as potential problems could easily be addressed through the existing laws and adequate application of competition rules. At best, the present rules provide only a basic shield against (at present still largely hypothetical) violations. In the worst case, their overzealous application by NRAs would act as a burden to developement of new services.