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6 NEWS & VIEWS
August 2015
Working towards a robust net neutrality policy in Europe
by wouter gekiere
The three EU policy-making institutions — the European Commission , the European Parliament and the Council — recently agreed net neutrality provisions as part of the much discussed EU Telecoms Single Market Regulation proposed by the European Commission in 2013 . The political deal arrives only a few months after the Federal Communications Commission ( FCC ), the US telecoms regulator , introduced very similar “ bright line ” rules in its Open Internet Order .
Under the new EU legislative framework , Internet service providers ( ISPs ) will no longer be allowed to block , throttle or discriminate between specific content online , except in specific cases ( for example , to prevent network congestion or preserve network security ), nor to receive payments from content industry for prioritising specific content (“ no paid prioritisation ”). Furthermore , services other than Internet access services with a guaranteed level of quality offered by ISPs ( often-cited examples : IPTV , telemedicine , new machine-to-machine communications ) — which run over the same broadband infrastructure — will not be allowed to harm the availability and the general quality of Internet access services .
“ The EU will have the strongest and most comprehensive open Internet rules in the world ,” the European Commission said at the occasion of the political deal .
Why does the open Internet matter , also for public service media ?
The Internet ’ s open and non-discriminatory character is a key driver for innovation . It provides Internet users unfettered access to a wide range of content and applications of their choice and enables content and applications industry to reach out to Internet users without permission so that they are delivered the choice they expect . By propagating content which is not just what is currently popular or profitable , it has also been a vital engine for safeguarding media freedom and pluralism and for the free circulation of information , especially where access to independent news reporting is scarce .
Accordingly , network operators and ISPs are obliged to ensure unrestricted access to content and services for users , irrespective of their origin , type or location on the Internet .
The Internet plays an ever more important complementary role to TV and radio broadcasting in disseminating news , information and audio-visual content . Public service media ( PSM ) are trusted brands in this environment , offering
❝ With network operators increasingly offering content services of their own , there is an inherent risk that they will use their capacity to manage Internet traffic to favour their offers of content over those of competitors .❞
citizens a point of reference for news and a range of high-quality programmes and services ( that is , catch-up , text , second screen or other Web-based services ). Their investments drive innovation and actively contribute to the open Internet ’ s success .
The rising power of ISPs as gatekeepers poses challenges to its open and neutral character . The data-intense audio-visual services of PSM compete for quality access with YouTube , VoD services , VoIP services such as Skype , Google and other search engines as well as the non-Internet access services ( also called specialised or managed services ) ISPs offer and which run over the same infrastructure ( for example , VoIP , triple play and IPTV ).
In 2012 already , BEREC , the EU body of national telecoms regulators , clearly identified the incentives for discriminatory and anti-competitive practices by network operators if unrestricted Internet traffic management is permitted .
With network operators increasingly offering content services of their own , there is an inherent risk that they will use their capacity to manage Internet traffic to favour their offers of content over those of competitors . They could also facilitate access to content and services from partners with whom they have developed preferential relationships or exclusive arrangements , and inversely restrict access to competing services by slowing down data flows .
This could lead to a situation where only content providers with sufficient resources or market power can negotiate ‘ preferential ’ deals , distorting competition , hampering innovation and reducing user choice .
Main features of the new EU legislation
The EU legislative deal includes a robust set of rules . ISPs shall no longer block , throttle or discriminate between specific content and neither shall they be able to provide fast lanes for specific content online in exchange for remuneration (“ no paid prioritisation ”).
The text guarantees the freedom to offer non-Internet access offerings alongside Internet access services and enshrines concrete safeguards to prevent them from harming the quality of the Internet access or from being used as a replacement for Internet access , and to provide sufficient network capacity for Internet access .
In the original draft text , these non-Internet access services were still qualified and defined as specialised services but in the end , no agreement was found to maintain nor to define them . Instead , EU legislators opted for referring to them as “ services other than Internet access services ” which are “ optimised for specific content ”. Each national regulator will be in charge of the challenging task of verifying whether , and to what extent , such optimisation is objectively necessary to ensure the quality for specific content ; in order to avoid that , network operators would circumvent the imposed restrictions for Internet traffic management .
In addition , the new legislation reinforces contractual transparency requirements by ISPs to the benefit of the user and provides for an obligation by national regulatory authorities to monitor compliance with these rules and promote the availability of nondiscriminatory Internet access .
Last but not least , the text does not include a ban on commercial practices between ISPs and Internet subscribers offering free access to certain popular online services ( for example , Facebook and YouTube ) for users of particular broadband networks ( so called “ zerorating ”). It rather leaves it up to each national regulator to intervene against such practices “ which by reason of their
Andrew Anderson
General Manager Group Broadcast Services Seven Network Limited
APB PANELLISTS
Lim Kian Soon
Head of Satellite SingTel scale lead to situations where end-users ’ choice is materially reduced in practice ”.
At this stage , only the Netherlands and Slovenia have adopted strong net neutrality laws , including bans on zerorating practices .
Overall , the new EU rules are quite similar to the FCC open Internet order . The EU solution only has a stronger democratic legitimacy since it concerns a directly applicable law ( that is , a Regulation ) politically endorsed by all three EU policy-making institutions . Then again , enforcement of the Regulation will lie with 28 different national regulators — with the help of BEREC — as opposed to one US regulator body .
Conclusion
The EU net neutrality deal still awaits formal endorsement by the Council ( that is , national governments ) and the European Parliament after Summer . If passed , the Regulation will become directly applicable in 28 EU member states from April 2016 onwards . By then , national governments need to ensure that rules are implemented and “ effective , proportionate and dissuasive penalties ” apply in case of infringements . It goes without saying that the success of the Regulation will very much depend on the commitment by and resources allocated to national regulators .
In order to assess the functioning of the Regulation , the European Commission schedules to review the rules in place and report back about them in 2019 . This does not mean that the public debate will be stalled for the next three years . Next year , the Commission plans to review the overall EU legislative telecommunications framework ( that is , the EU Telecom Package ) and the call for robust end-users rights with regard to an open Internet may very well be back on the political table .
Additional information on EBU and the Open Internet is available at : http / www3 . ebu . ch / open-internet
Wouter Gekiere is Deputy Head of the Brussels office at the European Broadcasting Union ( EBU ).
Joe Igoe CTO MediaCorp