EU Net Neutrality Negotiations To Begin
EU governments let the Latvian Presidency begin talks on net neutrality with the European Parliament and Commission ("trialogue"). The net neutrality and mobile roaming proposals are the only parts remaining of the EC-proposed telecom single market "connected continent" legislative package, the Council said Wednesday. The presidency's negotiating mandate covers EU-wide rules on the open Internet, safeguarding end users' rights and ensuring nondiscriminatory treatment in access services, it said. The European Parliament Industry, Research and Energy (ITRE) Committee said it will try to convince governments to "include proper safeguards" for net neutrality. A digital rights advocate called some of the draft "bizarre."
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Latvia laid out the text of the net neutrality provisions in a Monday note to EU delegations, which met Wednesday and authorized talks. It's not clear whether the national representatives made any changes to the wording; the negotiating document won't be made public, an EU diplomatic source said.
"A significant number of end-users are affected by traffic management practices which block or slow down specific applications," the note said. "These tendencies require common rules at the Union level" to keep the Internet open and avoid fragmentation of the single market arising from individual countries' rules, it said. End users should be free to agree with Internet access providers on tariffs with specific data volumes and speeds or on other technical or commercial characteristics of the access service, it said. Commercial practices shouldn't create situations where users' choice is significantly reduced, it said.
The negotiating text would let content and application providers make deals with ISPs for services requiring specific quality of service (QoS), the document said. Such services shouldn't be offered as a replacement for Internet access services, nor should they materially impair other users' service quality, it said.
Internet access providers have a right to use "reasonable" traffic management, the text said. Reasonable means traffic management practices are transparent, proportionate, nondiscriminatory and not anti-competitive, it said. Access providers may use traffic management measures that take into account objectively different QoS requirements of certain traffic, such as latency or high bandwidth, it said. "Blocking, slowing down, altering, degrading or discriminating against specific content, applications or services should be prohibited,subject to justified and defined exceptions." Reasonable traffic management should also allow actions to protect networks against cyberattack and avoid congestion, it said. "Exceptionally, more restrictive traffic management measures affecting certain categories of content, applications or services may be necessary for the purpose of preventing network congestion, i.e., situations where congestion is pending."
The EU proposal doesn't bar specialized services like the FCC approach does, because government ministers believe nobody will be able to abuse them due to the level of competition in Europe's broadband market, said telecom consultant Innocenzo Genna, who represents smaller players. The text requires national regulators to monitor, in concrete cases, whether the emergence of specialized services might effectively impair the availability of the ordinary, best-effort, Internet in the market, he told us. "Whether or not this proposal will protect or affect net neutrality, it will depend on the competitive conditions of each national market and the attitude of the local regulator."
The ITRE committee said it wants to convince governments to install "proper safeguards" for an open Internet. "We ... want further guarantees to maintain the openness of the Internet by ensuring that users can run and provide applications and services of their choice as well as reinforcing the Internet as key driver of competition, economic growth, jobs, social development and innovation," said Pilar del Castillo, of the European People's Party and Spain, author of the official report on the connected continent package. Digital Economy and Society Commissioner Günther Oettinger urged Council members to "use this political drive and swiftly reach an agreement in trialogue. The Parliament is expecting this. Then we can move on with" the digital single market.
The draft Council language doesn't address the issue of paid peering, or interconnection, said Hogan Lovells (Paris) telecom attorney Winston Maxwell. "This leaves paid peering in a sort of regulatory never-never land, located somewhere between net neutrality and traditional EU competition and interconnection rules," he said.
European Digital Rights Executive Director Joe McNamee criticized the "bizarre wording" of the text. Article 3.3 is the critical one for net neutrality, and it specifically lets content providers be given preferential treatment instead of putting in place a real safeguard for neutrality, he said. Although another article clearly says ISPs can block, slow down or discriminate against specific content, applications or services only for as long as necessary to, among other things, comply with legal obligations to which they're subject, explanatory comments go far beyond "legal obligations" and cover "other measures" and "national measures of general application," he said. That gives ISPs a big loophole for discriminatory behavior, he said. The negotiations should include the spectrum harmonization provisions governments threw out of the connected continent package debate, said the European Telecommunications Network Operators' Association and ITRE committee.