‘Specialized Services’ Among Several Questions Still Hanging in Europe’s Net Neutrality Debate

The Body of European Regulators for Electronic Communications (BEREC) has been studying net neutrality since 2009, said Nadia Trainar, chair of the net neutrality expert working group of French telecom regulator Autorité de régulation des communications éléctroniques et des postes, speaking on behalf of BEREC. The first challenge regulators faced was to try to better understand what was happening on the networks and why open access matters to stakeholders, she said. Some practices in the networks could be problematic for innovation in the long term, she said. So while BEREC’s 2012 traffic management investigation showed the situation isn’t desperate, the risk of network degradation is still important, she said.

Regulators then had to determine which principles they want the market to follow on traffic management, Trainar said. Traffic management and differential treatment are widespread but they're not all harmful, she said. After setting what it saw as good market practices, BEREC asked what regulators can do to ensure net neutrality, she said. The first way is to ensure competitive markets and transparency, she said. Regulators “acknowledge this might not be sufficient,” however, so proactive monitoring of quality of service and market evolution is needed, she said. BEREC must also be able to act in a way that gives consumers confidence that it has the right tools to intervene via QoS requirements, dispute resolution and other mechanisms, she said.

The proposed EC connected continent regulation comes in the context of a “very animated debate,” Trainar said. Some who don’t want public intervention in the Internet do want such intervention to safeguard net neutrality, she said. BEREC, which has been very critical of the proposal in general, thinks the net neutrality portion “strikes a relatively good balance,” she said.

But regulators still have questions, Trainar said. One is how to define Internet access services and specialized services, she said. It’s useful not to have too narrow a definition for access services, but BEREC also thinks specialized services require better definition to help regulators gauge whether interactions with Internet access services are being degraded, she said. BEREC wants flexible guiding precepts to determine if that degradation is taking place, she said. She also urged a broader approach to deciding what rules should govern traffic over the Internet, she said. Principles to assess various practices shouldn’t be limited to looking at blocking or filtering because in the future the issues may involve such things as data caps or other activities, she said. Another unanswered question is what is “reasonable” traffic management, she said.

Guaranteed net neutrality is a must, said Center for Democracy & Technology European Affairs Director Jens-Henrik Jeppesen. An open Internet is important for business and innovation as well as for consumers, he said. Some ISPs want a radically different way of operating the Internet which involves deals with content providers and different access charges, he said. But if those deals are allowed, it would deter new entrants, he said. The EC proposal should says that “non-discrimination of traffic is a basic obligation,” he said.

There’s no possibility of legislating net neutrality, said Centre for European Policy Studies Senior Research Fellow Andrea Renda. In this period of the Internet, public institutions are being asked to inspect the Internet, he said. People don’t want, in the name of net neutrality, to legislate the monitoring and patrolling of the Internet, he said.

Renda urged lawmakers to avoid: (1) Proposing a fantastic, new infrastructure and then expecting the private sector to fund it while telling businesses they won’t get any commercial rewards. (2) Regulating to the point where the Internet is open but empty. (3) Looking only for problems relating to the current legislative proposal, when net neutrality is a broader problem. End-users will have an open Internet when everyone along the value chain engages in competitive behavior, he said.

Consumers don’t want to regulate the Internet, just the access to it, said European Consumer Organisation Senior Policy Officer Guillermo Beltrà. Moreover, he said, it’s a myth that net neutrality is “a solution in search of a problem,” because extensive BEREC data shows many mobile phone users can’t access VoIP, WhatsApp and other services, he said. From a consumer point of view, users should be the ones to choose what content, apps and services they want online without any discrimination, subject, perhaps, to speed limits or data caps, he said. Exceptions to general traffic management must be clearly spelled out, he said.

The EC is glad to see both lead parliamentary committees suggesting it go for net neutrality regulation, said Anthony Whelan, acting director of DG Connect content and technology, electronic communications networks and services. There’s tension between durable principles-based legislation and the need for clarity and uniform applications among EU members, he said. The main principle must be for open Internet access, with no blocking or discriminatory treatment, he said. He called for a clear list of exceptions to that concept.

Regarding specialized services, Whelan counseled against “over-regulation by anticipation.” There are already protections in place to deal with the situation, he said. Those are competition; that telcos’ main product is Internet access, so fairly strong evidence would be needed that companies are degrading their own product; and the primacy of the open Internet, he said. These protections ensure that only those who need them for very specific purposes will contract specialized services, he said.

The telecom reform package could see a plenary vote in February, Harbour said. The Industry, Research and Energy Committee will consider its response to the EC proposal at a Thursday hearing.