EU Presidency Proposes Internet Access as a Universal Service to Break Net Neutrality Logjam

There is "wide agreement" among governments on the need to make net neutrality a priority, Giacomelli wrote. Italy wants to "devote every effort" to the issue before its term ends Dec. 31, he said. An open, free, nondiscriminatory Internet requires adequate regulation and a direct agreement between network operators and OTT players, he said. Resolution will come only when Internet access is considered a universal service and fundamental right, he said, and focusing on users' rights should influence the position of all economic players.

A large number of delegations considered open and nondiscriminatory Internet access important, "but that it was likewise important to avoid curtailing innovation and investment," said a provisional Council news release after a telecom ministers' Thursday meeting. The presidency "concluded that more technical work was needed" to define a Council position on net neutrality, it said.

The Presidency was clear that net neutrality requires regulation and that without it, the financial barrier to new entrants would hamper innovation, said EDRi Executive Joe McNamee Friday on the organization's blog. Giacomelli didn't acknowledge the damage that would be done to people's fundamental rights if access providers arbitrarily could undermine the rights to send or receive information, said McNamee. While the statement "is a step in the right direction," the full scope of the issue hasn't yet been grasped, he wrote: "References to broadband as a universal service right are interesting but tangential to the discussion" because the question is: "broadband access to what?"

The stalemate means "the real world is moving on while Brussels sleeps, in a way that will make any prospect of Europe-wide legislation with meaningful bite all but impossible by the time a relevant consensus might be achieved," said Brussels telecom lawyer David Cantor, who represents telecom companies in regulatory and antitrust matters.

National governments are setting the example, said European Consumer Organisation (BEUC) Director General Monique Goyens. Norway paved the way in November by barring ISPs from boosting their own content, she said in a news release, and the Netherlands and Slovenia have enacted laws protecting net neutrality. It's "not a vague concept and cannot be dealt with by general principles," Goyens said: There must detailed parameters preventing malpractice such as price discrimination and blocking of rival services.

French e-communications regulator ARCEP is addressing the issue via Internet quality of service (QoS) measurements, Hogan Lovells (Paris) telecom lawyer Winston Maxwell wrote Friday on the law firm's blog. The measurements are intended to "make poor ISP performance more visible to consumers, regulators and upstream content providers," he said. The idea is that if consumers have reliable access to QoS data, they'll switch providers if their ISP offers bad service, allowing the market to self-regulate, he said. ARCEP, like other European regulators, has the authority to impose minimum QoS levels in justified cases, Maxwell wrote.

Google Vote

Meanwhile, reaction continued to the Thursday nonbinding European Parliament resolution that called for search engines to be unbundled from other commercial services to ensure competition in the digital single market. The European Commission is "unlikely to impose a structural remedy, although some observers are now urging so-called 'functional separation' of Google's search business," Cantor told us. Google didn't comment.

BEUC is "reassured" that the EC and European Parliament "are critical of Google's current practice of stacking and preferring services as it pleases," a spokesman told us Monday. The legal investigations against the company are increasingly portrayed as anti-Google or as a potential risk to consumer choice, but neither is the case, he said. "We want to see this antitrust investigation ensure a fair online search market for years to come, irrespective of the provider." The more Google seeks to diversify its service range, the more EU laws and standards it will have to comply with, said the spokesman.

Given Google's dominance in search and search advertising, and its alleged ongoing discrimination against rivals in the downstream markets, "it is unsurprising that critics are concerned by what economists describe as 'vertical leveraging,'" said the Initiative for a Competitive Online Marketplace (ICOMP), which is partially funded by Microsoft. Structural solutions are often considered in such cases and have been successfully imposed in the telecom and public service broadcasting arenas, among others, it said last week. The resolution doesn't take a position on the issue but simply asks the EC to consider it among a range of possible solutions to the Google problem, said ICOMP. In these circumstances, "the stance of the European Parliament is a great deal less surprising and a great deal more measured than much of the reaction," it added.

Google's response to the resolution was to unwisely throw "stones at Europe while living in a glass house," said Scott Cleland, chairman of NetCompetition.org, which includes ISPs as members. First, the search giant played the victim, acting as if it hadn't done anything wrong worthy of European law enforcement, he wrote on his blog. Google then accused the EU of "politicizing" antitrust when it is itself "among the most political multi-national corporations of the 21st century," he said. The company also complained about Europe having a protectionist industrial policy when it is the "prime beneficiary" of an American Internet industrial policy that ensures that Google and Silicon Valley have relatively the least tax, regulation and law enforcement of any U.S. corporations, he said.