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Public consultation of European net neutrality guidelines

Today BEREC launches its draft European net neutrality guidelines, and over a period of six weeks’ public consultation, stakeholders are invited to provide their comments. BEREC will then, after having taken the feedback into account, finalize the guidelines by 30 August. This short paper presents some of the core questions which the guidelines seek to answer.

Following on from the European net neutrality year 2015, the draft European net neutrality guidelines are published by BEREC 6 June 2016, clarifying how regulators should ensure preservation of the open Internet for European citizens. BEREC was given the task to develop these guidelines by the Regulation, and the development draws on seven years of experience of BEREC’s Net Neutrality Expert Working Group.

The role of BEREC related to European net neutrality is described in plenty contributions, starting from the BEREC response to the Commission’s net neutrality consultation in 2010, including the Traffic Management Investigation conducted in cooperation with the Commission in 2012, spurring the Commission’s proposed regulation in 2013. After an extensive political process, European net neutrality Regulation was finally adopted in 2015.

The content of the NN Guidelines

There are many questions one may ask about how to understand the European net neutrality Regulation, and the questions mostly asked are: How should zero-rating be regulated? What kind of reasonable traffic management is allowed? What kind of exceptional traffic management is allowed? And how should Internet access services be protected from specialised services? BEREC’s guidelines suggest answers to these core questions.

Below some of the aspects covered by the guidelines are presented. Readers that need a deeper understanding are referred to BEREC’s documentation.

I. Zero-rating

Commercial practices, and zero-rating in particular, have been surrounded by some uncertainty in the European discourse on net neutrality, and the opinions have been strong on both sides. Based on the ban on blocking and throttling of applications, BEREC’s guidelines recommend that zero-rating practices where the zero-rated applications receive preferential treatment after the data cap is reached should be prohibited.

And in line with the lawmakers’ balanced attitude to zero-rating and other commercial practices, the guidelines propose a set of criteria which regulators can use to assess such practices in general. These criteria encompass market positions of the providers involved, the scale of the practice, effects on end-user, including effects on content and application providers, and whether the general aims of the Regulation are circumvented.

II. Reasonable traffic management

The Regulation establishes common rules “to safeguard equal and non-discriminatory treatment of traffic”. But this does not prevent ISPs from applying reasonable traffic management for Internet traffic. An important criterion for such measures is that they are based on objective technical quality of service requirements. Furthermore, such measures shall not monitor the specific content of the traffic.

One can’t avoid mentioning the special European net neutrality feature “categories of traffic” in this regard. BEREC’s guidelines shed some light on how such traffic categories can be used to differentiate traffic management. In case traffic categories are implemented by ISPs, BEREC explains that traffic categories may be identified by reference to application layer protocol or generic application type in so far as applications with equivalent requirements are handled agnostically in the same category, among other criteria.

III. Exceptional traffic management

The differentiation of Internet traffic allowed under reasonable traffic management must be distinguished from traffic management going beyond reasonable traffic management. For the latter purpose, the Regulation specifies these exceptions: Other legislative measures; network integrity and security; and congestion management. Only under these three exceptions, measures like throttling or blocking of applications are allowed.

Congestion management is a particularly complex traffic management measure to assess, and guidance is therefore important in this area. As BEREC’s guidelines describe, congestion management may also be done on a general basis, independent of applications. In light of the principle of proportionality, regulators should consider whether such types of congestion management would be sufficient and equally effective to manage congestion, when assessing ISP’s practices.

IV. Specialised services

Specialised services, denounced by some, praised by others, are also covered by BEREC’s guidelines. These services are other services than Internet access services that may be offered by providers under certain conditions. The first main condition is that the service is offered to meet requirements for a specific level of quality which can’t be achieved over the Internet access service, and the second main condition is that the network capacity is sufficient to provide the service in addition to any Internet access service provided.

In order to assess whether the ISPs fulfil these conditions, the guidelines recommend regulators to request ISPs for information about their specialised services. ISPs should then demonstrate how the specific level of quality cannot be assured over the Internet access service, and explain how sufficient network capacity is ensured. Regulators can then conduct their assessment based on the information provided, as well as measurements of the performance of the Internet access service.

Seeking feedback to the NN Guidelines

BEREC’s guidelines recommend how regulators should implement the European net neutrality Regulation. Before the guidelines will become adopted by 30 August, feedback is requested from stakeholders in the public consultation closing 18 July. After the consultation BEREC will take the comments received into account and then finalise the guidelines.

When the guidelines become available, the national regulators should take utmost account of them. The guidelines will clarify the obligations of regulators to “closely monitor and ensure compliance” with the Regulation. This should contribute to achieve the goal of the Regulation through a harmonized approach to net neutrality across the different European countries.

Implications for the Norwegian co-regulation

The European net neutrality Regulation is introduced in Norway too, and the Norwegian Communications Authority (Nkom) will base its national regulation on BEREC’s guidelines when they are released. The current Norwegian net neutrality guidelines established in 2009 based on Nkom’s co-regulatory approach will thereby be phased out, but Nkom will continue its effort for a good dialogue with relevant stakeholders.

As the note published February 2016 by the Norwegian Ministry of Transport and Communications explains, the differences between the current national and the upcoming European regulations are limited. Furthermore, the Ministry’s note says that the European net neutrality Regulation gives stronger regulatory tools for the authorities, due to the migration from a voluntary agreement to a law-based regime.