Brussels, 07/06/2016 (Agence Europe) -The Body of European Regulators for Electronic Communications (BEREC) prefers a case by case assessment rather than a general ban (such as in India or Brazil) on the practice of zero rating. This was revealed in its guidelines on net neutrality, published on 6 June, which begins a six-week consultation.
Regulation 2015/2120 on an open Internet, adopted by the Parliament and Council in November 2015, guarantees access to all Internet content and services free from discrimination. It stipulates that BEREC issues guidelines by 30 August at the latest on the obligations incumbent on the national regulatory authorities.
The document published on 6 June therefore constitutes the first draft of these guidelines. It tackles sensitive questions such as the practice of zero rating, traffic management and specialised services. It has begun a public consultation that is open until 18 July. After this the BEREC will adopt a final version on 25 August and present it on 30 August.
Zero rating: the regulation does not formally ban zero rating. This practice allows for operators not having to measure the volume of data for certain applications or services when calculating their use by their customers. BEREC also allows for a certain flexibility to persist because it is recommending a case-by-case approach. Frode Sørensen one of the two co-presidents of the net neutrality experts' group said that "There are many different practices. Certain clearly infringe European rules, such as when, for example, users can only use certain specific applications and not others or when they have reached a data cap. With respect to what is less clear, the BEREC is recommending a case-by-case approach". The BEREC project is recommending a range of criteria to help the national regulators assess the situation (circumventing the general aims of the regulation, position on the Internet services providers market and the CAPS involved, effects on consumers/business rights, effects on end-user rights of CAPS, the scale of the practice and availability of alternative offers, as well as the effects on the freedom of expression and media pluralism).
Traffic management and specialised services. The rules on traffic management defining the daily operations for service providers on their network. BEREC indicates that as long as traffic management is carried out independently from applications and end-users, the traffic is regarded as providing non-discriminatory treatment. It explains, however, that the regulation allows for "reasonable traffic management", which can be used to differentiate traffic categories and it allows for three exemptions in this connection: compliance with other rules, maintaining integrity and security, as well as congestion management measures. With regard to specialised services, the BEREC indicates that specialised services, such as online health services in real time, must respond to criteria relating to needs and capacity.
Reactions. The EDRI is an organisation that actively strives to protect fundamental Internet rights and has said that it is relatively pleased with the project guidelines. Nonetheless, it did call for improvements to zero rating, traffic management and specialised services. It would like, for example, that the practice of zero rating to be qualified as a "commercial practice" that violates Internet users' rights. The European Telecommunications Network Operators (ETNO), however, condemned an overly prescriptive approach in the new regulation for an open Internet that "would risk hampering growth, innovation and services quality, well beyond the telecoms industry”. An ETNO press release explained that “As Europe moves towards a 5G-scenario… In addition to this, we believe that the final text of the guidelines should not limit or restrict our ability to differentiate consumer offers and provide zero rated services. On the one hand, this would deprive users from advantage is tariffs. On the other hand, it would open up legal uncertainty as to the consistency of the guidelines with the open Internet regulation”. (Original version in French by Sophie Petitjean)