On Monday 6 June, the Board of European Regulators of Electronic Communications (BEREC) released their Guidelines on the Implementation by National Regulators of European Net Neutrality Rules. This document, which will now be in public consultation for six weeks, seeks to provide guidance to European National Regulatory Authorities (NRAs) as to how to implement a Regulation on network neutrality that was enacted by the European Parliament and the Council of the European Union in December 2015.
Network neutrality has proven to be a complex and hotly debated issue. It is clear that many consumers have a palpable fear that network operators might restrict their freedom of choice in accessing content of services of their choice, or using devices of their choice; at the same time, actual problematic incidents have been extremely rare, and the NRAs consistently argued that the rules already in place prior to enactment of the new Regulation were more than adequate to deal with current and likely future problems. Indeed, all indications are that when the European Commission first proposed legislation in this area in 2013, it was not with the intent of tightening rules, but rather to reduce the risk that each member state might enact legislation going beyond current rules, thus exacerbating problems of regulatory fragmentation across Europe.
Under these conditions, it was difficult to reach consensus on the Regulation. Drawing bright-line rules that enable innovation while protecting legitimate consumer protection interests is exceedingly difficult. The final text enacted by Parliament and Council is a sensible set of compromises, but minor confusion remained in the text as a result of the complex negotiating process, and many details were left to the regulators (in the form of BEREC) to flesh out. All indications are that it was difficult for the NRAs to find consensus.
It is clear from the results (based on a preliminary review of the text) that BEREC has done a thoughtful and conscientious job. On all of the hardest questions, BEREC has reached conclusions that are sensible, pragmatic, and true to both the letter and the spirit of the compromises in the Regulation:
- The recognition that prioritisation and traffic management can be beneficial not only for so-called specialised services, but also for certain (eg delay-sensitive) applications on the public internet (BEREC paragraphs 54-65, 72).
- The recognition that traffic management may be appropriate not only as a short-time expedient, but also a long-term or continuous basis (BEREC, paragraphs 68-70). The Regulation is confused and self-contradictory on this point.
- On the practice of zero-rating (where an internet service provider applies a price of zero to the data traffic associated with a particular application or category of applications (and the data does not count towards any data cap in place on the Internet Access Service), the Guidelines generally call for case by case assessment based on a defined list of criteria (BEREC, paragraphs 37-45). This is appropriate. There are many different kinds of zero-rating. Some forms of zero-rating might have a negative impact on consumers or on content and application providers, but other forms benefit consumers.
We now enter a consultation period, where network operators will predictably complain that the Guidelines are too burdensome, and place an unreasonable burden of proof on them; and where consumer advocates might argue that consumer protection should have gone further. There is also room to question whether the Regulation, together with the Guidelines, will do enough to prevent fragmentation among national laws.
All things considered, we think that BEREC has taken a reasonable line, and that the measures put forward represent a sensible set of compromises.