Net Neutrality: Novel Eu Regulatory Guidelines

Professor Lorna Woods, University of Essex

After a long legislative process, a novel European Union regulation amending the European Union telecommunication packet was agreed final Autumn together with came into forcefulness inward Apr 2016. It contained rules relating to roaming together with to universal service. These latter rules are the EU’s provisions on meshing neutrality together with they aim ‘to works life mutual rules to safeguard equal together with non-discriminatory handling of traffic inward the provision of meshing access services together with related end-users’ rights. The intention is ‘to protect end-users together with simultaneously to guarantee the continued performance of the meshing ecosystem as an engine of innovation’ (point 1 inward the preamble). 

At the time, at that spot was ground as to whether these rules were good, bad or simply ugly.  The Commission at that phase made big claims virtually the achievement.  Indeed, according to betoken ix inward the preamble:

[w]hen providing meshing access services, providers of those services should care for all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment. According to full general principles of Union police line together with settled case-law, comparable situations should non move treated differently together with unlike situations should non move treated inward the same means unless such handling is objectively justified. 

The rights of end-users are found inward Art. 3 of the Regulation.  Art. 3(1) contains the rights of end-users to access together with exercise the Internet.  Subsequent sub-provisions bargain amongst possible exceptions.  Due to the open-textured nature of the drafting inward the Regulation, together with the inclusion of sure as shooting exceptions to the basic principle, the aeroplane of protection to end-users as good as the compass of providers’ activities inward practise were uncertain. 

BEREC, the Body of European Regulators of Electronic Communications, was together with so tasked amongst producing guidelines to cutting downwardly on or so of these uncertainties.  BEREC launched a populace consultation on the Guidelines on sixth June 2016 which volition run until 18th July. In the Guidelines, as amongst the Regulation, at that spot are 3 problematic issues: zero-rating, traffic administration together with ‘specialised services’.

Zero-rating

The Issue: Zero-rating is the practise whereby traffic from sure as shooting sources does non count towards a subscriber’s monthly information cap.  Essentially this allows providers to accuse unlike rates inward honour of comparable services.  Zero rating makes ‘free’ sources to a greater extent than attractive to subscribers together with potentially has an impact on the actual content consumed.  There are concerns that a provider volition prioritise content it, or a linked company, provides; or provides solely a ‘walled garden’. There are questions hither virtually the impact on variety of platforms (particularly where nosotros are looking at vertically integrated conglomerates) together with variety of content, as good as the impact on the powerfulness of users to exercise strong end-to-end encryption.

The Regulation: does non prohibit zero-rating

The Guidelines: BEREC notes that unlike forms of aught rating may get got unlike consequences.  In determining the acceptability of a given shape of aught rating, it takes a case-by-case approach based on criteria developed from the price of the Regulation together with laid downwardly inward the Guidelines.

Circumvention of full general aims of Regulation (see Art. 1, Rec 7)

Market seat of ISPs together with content together with application providers involved (Rec 7)

Any effects on end-user rights of consumers/businesses

Any effects on end-user rights of content together with application providers

The scale of the practise together with availability of choice offers

Any effects on liberty of seem together with media pluralism (rec 13). 

We could propose that this is a middle ground, allowing regulators to assess the threats to variety inward the specific instance. There are all the same questions as to whether practise volition render an adequate safeguard given that BEREC reiterates that the impact on users must move material, together with move sufficiently predictable.  Predictability may move peculiarly problematic for start-ups. In such a circumstance, it could move that providers would move tempted to force the limits of the permissible, at to the lowest degree adversely affecting variety of platform together with content. It should move noted that aught rating inward particular has been seen as especially problematic inward contest police line terms, together with has fifty-fifty been banned inward or so countries.

Traffic Management

The Issue: Historically, transfer of information has been carried out on a ‘best efforts’ basis, amongst all traffic inward regulation treated equally. Traffic administration is the means operators prioritise or confine the flows of information on the network.  It is envisaged as a means of dealing amongst congestion, or inward ensuring that fourth dimension sensitive applications piece of work (consider the differential impact amongst regards an ‘Internet of Things’ (IoT) wellness device, the component subdivision of which is disrupted yesteryear comparing amongst spam email). The occupation is that slowing downwardly or so services tin brand them less attractive, so a telecoms provider mightiness get got an incentive to tiresome downwardly (throttle) an OTT vocalism chat service. It is hard to assess if services get got objectively unlike requirements.   As the Regulation noted, ‘a pregnant number of end-users are affected yesteryear traffic administration practices which block or tiresome downwardly specific applications or services’ (recital 3 inward the preamble). 

The Regulation: permits traffic management, but bailiwick to sure as shooting safeguards.  So, the Regulation allows ‘reasonable traffic management’ which may move used to differentiate betwixt ‘categories of traffic’.  There are 3 additional exceptions inward Art. 3(3) which are allowed for the next reasons: a) compliance amongst other laws; b) preservation of integrity together with security; together with c) congestion administration measures (see likewise Rec. 13, fourteen together with 15).

The Guidelines: inward regulation back upward the thought that traffic administration should move service neutral, reiterating the Regulation on this issue.  At para 74 it lists traffic administration practices that (subject to Art. 3(3) of the Regulation) are non permitted.  The guidance together with limitations on reasonable traffic administration focus on application-agnostic traffic management, specifically non allowing an operator to handle specific application traffic as component subdivision of their traffic administration policies. Note, however, that non-discrimination does non hateful that the character of service is the same, provided application-agnostic traffic administration tin move shown.  Following the requirements of the Regulation,

[i]n guild to move deemed to move reasonable, such measures shall move transparent, non-discriminatory together with proportionate, together with shall non move based on commercial considerations but on objectively unlike technical character of service requirements of specific categories of traffic. Such measures shall non monitor the specific content together with shall non move maintained for longer than necessary.

Nonetheless according to para 63, operators are permitted to distinguish betwixt unlike classes, fifty-fifty when the network is non congested: an operator tin differentiate betwixt ‘objectively different’ categories of traffic – such as video, gaming, spider web browsing – as long as the purpose is to optimize the overall character together with user sense ‘based on technical character of service requirements (for example, inward price of latency, jitter, packet loss, together with bandwidth) of the specific categories of traffic’. An Internet service provider must move able to item the traffic administration rationale when implemented to the national regulatory regime (NRAs), together with move transparent to the goal user. The rationale seems to move to permit the network providers to optimize their networks, thereby putting off the twenty-four hours when the networks demand to move upgraded. The number of who should pay for the ultimate upgrade (or inward what proportions) is hotly debated, reflecting concerns of the broadcasting ‘must carry’ debate.

‘Specialised services’

The Issue: the term, which is non inward the Regulation, refers to those services which require special handling (think virtually or so IoT wellness apps) as an exception to the regulation that paid prioritisation of sure as shooting content is non permissible.  BEREC suggests that ‘specialised services’ is a shorthand for the terminology inward Art. 3(5) of the Regulation. In effect, ‘specialised services’ would non autumn inside the meshing neutrality rules. The enquiry was how broad would this exceptional shape be? In effect, would this opened upward up the possibility of a ‘fast lane’ for those prepared to pay the toll?

The Regulation: the Definition was opened upward to interpretation, though at that spot were or so safeguards provided.  Specifically, the provision of specialised services should non move detrimental to regular Internet services together with may solely move offered if the provider has sufficient capacity.  Essentially this requires a show of necessity together with capacity.

The Guidelines: BEREC has opted for a narrower perspective on these services. ‘Specialised services’ get got to move novel services that cannot component subdivision over the opened upward Internet, so the extra speed must move ‘objectively required’ hence closing downwardly the possibility of a two-tiered meshing generally.  The Guidelines give examples: high-quality vocalism calling on mobile networks; alive television set delivered over the internet; together with remote surgical physical care for but national regulatory regime volition move gratis to assess this on a representative yesteryear representative basis.  The justification for this was the inability to predict what novel services volition develop, especially inward the context of the IoT. There are or so concerns.

It seems that BEREC has decided that the provision of specialised services which volition require or so of the relevant subscriber’s ain bandwidth for ‘normal’ Internet exercise volition move acceptable, provided that at that spot is no impact on the character of other users’ sense (para 118).  This is the selection of the user inward BEREC’s view.  Further, the Guidelines seem to envisage that it volition move the service wanting to move designated as specialised that volition ‘objectively determine’ whether the criteria are satisfied. Does this run a jeopardy undermining the safeguards? BEREC seems to move aware of the risk: it suggests that the NRAs should monitor these services closely to depository fiscal establishment gibe that the reasons given are plausible together with non simply virtually circumventing the rules.

It remains to move seen how opened upward to motility BEREC is inward price of changes to the draft.  While the meshing neutrality campaigners get got expressed concern virtually threats to the opened upward Internet, every bit the operators get got voiced concern virtually the residuum achieved inward the draft as tin move seen from ETNO’s response.  While the contest together with pluralism issues are significant, underpinning this pregnant dissever is the number of where nosotros seem the coin to come upward from for network infrastructure together with its development. There are a number of competing sectors inward the mix: infrastructure, access, platforms/intermediaries, content providers together with aggregators as good as the end-users – but who should pay together with how should that payment move assessed together with structured?

Photo credit: www.dontcomply.com

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