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The state of Net Neutrality Regulation in Europe

The BEREC Opinion on the evaluation of the net neutrality regulation in Europe concludes that, in general, the regulation is working according to its intention. Nevertheless, the guidelines could be clarified in certain instances, which BEREC will follow-up in 2019.

The aim of the European rules for net neutrality is to protect end-users’ rights and internet innovation. These rules consist of Regulation (EU) 2015/2120 relevant for the European Economic Area, as well as BEREC Net Neutrality Guidelines according to the mandate in the Regulation.

As a basis for the BEREC Opinion, BEREC Net Neutrality Expert Working Group (NN EWG) has collected input from stakeholders through a public consultation, and collected experiences from national regulators via NN EWG on the application of the NN Guidelines.

Zero-rating

Zero-rating where traffic associated with specific applications does not count towards a data cap, is an area of particular interest, and has been challenged by stakeholders regarding the application of the net neutrality rules. As the European status report on net neutrality showed in October this year, there are zero-rating products in almost all European countries.

In the Opinion, BEREC concludes that no substantial changes are needed with regard to the current text of the NN Guidelines. However, BEREC considers that some further clarifications could be provided to contribute to maintain a consistent assessment of zero-rating by NRAs.

Furthermore, BEREC will consider clarifying how to apply and weigh the relevant factors for assessing zero-rating practices by providing a step-by-step methodology. This could help national regulators to assess cases in a more consistent manner.

Traffic management

The question whether offering different internet access service (IAS) subscriptions with different non-discriminatory Quality of Service (QoS) classes would be allowed, has been raised by some stakeholders. BEREC understands this to be compatible with the Regulation as long as the practice does not limit the exercise of the rights of end-users.

Such IAS subscriptions are already available in some countries, implementing different speeds to mobile IAS subscriptions. BEREC will seek to further clarify in the NN Guidelines the requirements for providing different QoS classes for different IAS subscriptions in line with the Regulation.

Specialised services

The question regarding what qualifies as a specialised service, and what criteria should be considered to assess this, has become even more relevant due to the discussion about compatibility between net neutrality and the emerging 5G technology.

Therefore, BEREC will consider providing further clarifications in the NN Guidelines regarding the conditions that have to be met in order for a service to be characterised as a specialised service, and requirements regarding impact from specialised services on internet access services.

Emerging 5G technology

The NN rules are technologically neutral, and therefore do not constitute a ban on the use of 5G technology itself. The specific use the technology, as for any other technology, has to be assessed on a case-by-case basis.

For example, network slicing could be used as a method for ISPs to provide specialised services and IAS in parallel, and at the same time contribute to the prevention of detriment to the general quality of IAS by reason of the provision of specialised services. I.e. the 5G technology could actually contribute to the compliance with the NN rules.

The BEREC Opinion considers that the NN rules leave considerable room for the implementation of 5G technology. To date, BEREC has no knowledge of any concrete example given by stakeholders where the implementation of 5G technology would be impeded by the Regulation.