Despite heavy lobbying from the industry, the Body of European Regulators for Electronic Communications (BEREC) has not flinched. It has barely changed its draft guidelines on net neutrality published before the summer (EUROPE 11567). The amendments made and presented on Tuesday, 30 August are more like simple clarifications.
Regulation 2015/2120 on the open Internet adopted by Parliament and the Council in November 2015 guarantee comprehensive access to all Internet content and services without discrimination. It calls on BEREC to issue guidelines for implementing the obligations incumbent on the national regulatory authorities by 30 August at the latest.
Following the six-week public consultation in which it received just under 500,000 responses, BEREC has decided to stick to its positions. And has therefore decided to simply clarify the fact that a service provided by a Virtual Private Network (VPN) could be described as a specialised service (which was not clear in the June draft). It also explained that the 2015 regulation did not require prior authorisation when commercial practices, traffic management and specialised services were involved. Finally, it also indicated to the national regulatory authorities that the regulation allows for specialised services and Internet access services to compete, as long as the impact is limited to the user who has requested these services.
Zero rating and traffic management. For the remainder, the final document retains the main guidelines of the draft published before the summer. It therefore recommends a case-by-case approach for zero rating practices, which means that operators are not obliged to measure the volume of data in certain applications or services when calculating the level of customer use. BEREC is proposing criteria to help the national regulators assess the situation (involving the circumvention of the regulation's general objectives, the position on the Internet service providers market and the limitations covered, as well as the effects on consumers and enterprise, limit rights and the scale of the practice and availability of alternative services). With regard to traffic management, BEREC has indicated that traffic is treated in a balanced way "insofar as its management is carried out independently from applications and final users". It does explain, however, that the regulation allows for "reasonable traffic management", which can be used to differentiate traffic categories. Three exceptions are included: compliance with other rules, preserving integrity and security, as well as congestion management measures.
The Industry expresses "concern". The Commission and human rights organisations operating on the Internet, as well as consumers, immediately welcomed this text. Joe McNamee, the Executive Director of the EDRI welcomed the work carried out by the BEREC, despite the "pressure exerted by the telecommunications lobby" and pointed out that Europe is now ahead at an international level in the field of introducing standards that promote an open, competitive and neutral Internet. Monique Goyens, the BEUC Director-General stated "consumers should be delighted because neutrality is now reality in Europe".
At the opposite end of the spectrum, the telecommunications industry expressed its disappointment in June. The European Telecommunications Network Operators (ETNO) explained that it was taking note of these developments and would analyse the document. It subsequently declared that "the majority of the concerns underlined and described by industry experts have not been taken into account in the final guidelines". The GSMA represents the interests of mobile operators worldwide and expressed its concerns "We need to express our deepest concern about the Guidelines, as they appear to open a scenario of legal uncertainty as well as create a restraint on customer choice, network innovation and investment”. A representative from the industry explained that it might consider legal action. Although none of its representatives are mentioning the word "blackmail", the industry could enact some of the threats it highlighted in its 5G manifesto (EUROPE 11590). (Original version in French by Sophie Petitjean)