Fate of EU Net Neutrality Negotiations Said Shaky, Despite Some Progress
Efforts to resolve the impasse between national governments and the European Parliament over EU net neutrality rules appeared to stall Tuesday as negotiators once again failed to agree on provisions in the proposed telecom single market (TSM) package. The stand-off between the two EU institutions could eventually spell the demise of the TSM, said some following the situation. But an EU diplomatic source said the two sides are moving closer. The legislative package looks likely to be shunted to the incoming Luxembourg EU Presidency, which takes office July 1.
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Parliament wants to add the notion of "nondiscrimination" to the text, and isn't entirely happy with the language on "other services" and traffic management, said the diplomatic source. Members of the European Parliament (MEPs) also want more end-user rights, particularly concerning information on actual vs. advertised broadband speeds, she said, but governments "find some of these consumer demands too costly and difficult to put in practice."
There will be "intense technical work" in the next few days, the diplomatic source said. The EC said it would distribute "non-papers," or discussion documents, Wednesday, and Parliament promised to clarify its position by the end of the week, she said. The compromises being chased are on the technical level at this stage, but the next occasion for governments to take a position is at the next trialogue, she said. "The tendency has been that the presidency is very willing to have a swift pace whereas the [European Parliament] needs more time," she emailed. "We are not even near a failure in negotiations," she said. From the procedural point of view, there's still a long way to go, said the diplomatic source. The positions are getting closer, as the Council accepts the principle of equal treatment of traffic and Parliament the idea of traffic management, she said.
Tuesday's "trialogue" among the Council, Parliament and European Commission was supposed to be the final one on the TSM, French citizens' advocacy group La Quadrature du Net said Wednesday. Negotiations "are now particularly difficult" since it became clear that the Council doesn't want to enshrine the principle of net neutrality into law, unlike the FCC, it said. MEPs have refused for now to give in to pressure from governments and powerful telecom lobbies, instead holding their position from April 2014 on preservation of freedom and nondiscrimination, it said.
The Council text "leaves a fair amount of flexibility for negotiated 'managed services,'" whereas the Parliament wants to severely limit managed services so they don't cannibalize general Internet services, Hogan Lovells (Paris) telecom lawyer Winston Maxwell told us. But European Digital Rights (EDRi) Executive Director Joe McNamee said the main obstacle to agreement "is that the Parliament voted for a clearly pro-net neutrality text, while the EU Council proposed the most explicitly anti-net neutrality proposal imaginable."
The European Consumer Organisation (BEUC) accused nations of "dragging their feet on net neutrality for far too long." Any net neutrality provision that continues to allow malpractices such a zero rating "is not worth the legislative draft it is written on, for this will be the thin end of the wedge," said a BEUC spokesman. It would shift Internet content control in the long run toward host networks, he told us. Europe should follow the lead of the FCC, "who have shown the battle can be turned around despite the odds," the spokesman said.
If no net neutrality compromise is agreed upon, the status quo will continue, with relatively general provisions in the existing telecom directives and individual countries enacting more stringent rules, Maxwell said. France is likely to create tougher rules at the national level if the EU compromise doesn't go through, he said. That would leave Europe as a whole with looser net neutrality rules than those issued by the FCC, said Maxwell.
In the absence of compromise, it's likely the TSM package "will be abandoned in favour of what could be a 3-year process for reviewing the existing telecoms regulatory framework" under the digital single market initiative, emailed Squire Patton communications attorney Ann LaFrance. It's not likely governments will change their minds much, said telecom consultant Innocenzo Genna, who advises smaller players. "The risk that everything [will] fail is high," he emailed.
Nor is it likely that net neutrality will be considered in the upcoming telecom framework review, EDRi's McNamee said. If large EU countries are able at this point not only to block progress but also to propose measures "antithetical to the entire history and philosophy of Europe's successful telecoms liberalisation," the EC will probably assume that in a few months' time, "they won't be able to push through meaningful legislation," he emailed.