Amendment 138 was saved tonight in a surprise European Parliament committee vote. It is another political signal of the European Parliament's disapproval of graduated response / 3-strikes measures. But the problems with the Telecoms Package remain, and users access to the Internet may still be limited or blocked under other provisions and there may be little that ussers can do about it.

The ITRE Committee voted 40 in favour and 4 against Amendment 138. I noted that the rapporteur, Catherine Trautmann had given it a plus sign on the voting list. I'm informed that only the 4 French EPP MEPs voted against. The German MEP Erika Mann ( PSE) seems to have abstained - it is notable that Erika Mann was one of the MEPs who tabled the AT&T amendments. The result means that the Parliament is

looking set to end up in disagreement with the Council, and the whole Telecoms Package will go into third reading after the European elections in June. We will not know for sure however, until the plenary - full Parliament - vote on 5th May. It is usual for the plenary to follow the guidance of the Committee vote, but in a contentious situation such as this, that does not necesarily follow.

The ITRE vote creates a problem for the French government, which cannot legitimately push ahead with its Creation and Internet law, with this hanging in the balance. Amendment 138 creates an obstacle for its proposed Hadopi - a public authority which would impose sanctions on users, but which is not a court of law.

A third reading should provide the necessary time to sort out the many difficulties with the Package - more are emerging now that the Package is getting some public exposure and more people are looking into it. The primary problem from the citizen's perspective is the limitations on access to the Internet which are in the draft of both bundles of directives. The limitations mean that the network operators can legitimately block access to services and applications, and all they have to do is put it in the users' contracts'. For example, the blocking of Skype by T-Mobile, and the blocking of the Pirate Bay by BT.

Overall, the Telecoms Package willl put more power in the hands of the large former monopoly companies like Deutsche Telekom and BT, and contains risks for smallerproviders.

Catherine Trautmann's Compromise Amendment 1

What the ITRE committee voted on this evening was Catherine Trautmann's final second reading report on the Framework Access and Authorisation directives. They voted three times. Compromise amendment 1 wasin fact the entire report on the three directives, as agreed between Mre Trautmann and the Council. The second vote was Amendment 138 and the third was a clause related to the digital divident.

In respect of Compromise Amendment 1, the UK government's amendments which seek to permit broadband providers to place restrictions on their networks, and offer preferential services without any oversight by the regulator, have found their way into Mrs Trautmann's final draft. These amendments contain the text: conditions limiting access to and/or use of services and applications (see below). They were first tabled by the Universal Services directive rapporteur, Malcolm Harbour, in his own report, and they have now been carried over into the Access and Authorisation directives by Mrs Trautmann.

One must therefore ask, what kind of back-room deal has been done. These amendments were agreed in secret between Mrs Trautmann and the men from the Council. Article 9.1 Access directive and Annexe 1 point 19 Authorisation directive are about limiting users access to the Internet. Article 8.2 and 8.4 support these provisions, by weaking users rights - indeed, it is no longer a right, rather users may simply be offered the ability to choose, which could be interpreted that they have the ability to choose between different packages of limitations.

It is important to recognise that Amendment 138 protects against unfair sanctions imposed without a court ruling, but it does not, under Mrs Trautmann's agreed draft, protect against blocking of content, services or applications by network operators.

I include here some of the amendments that were carried by the ITRE committee without any criticism or debate. The two recitals, 18a and 37 a are brand new, and I have not seen them in any published draft before - therefore, how could MEPs have been able to consider them or know what they were voting for.

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(18a) A competitive market will provide users with a wide choice of content, applications and

services. National regulatory authorities should promote users' ability to access and

distribute information and to run applications and services.

(37a) For the purposes of ensuring that there is no distortion or restriction of competition in the

electronic communications markets, the national regulatory authorities should be able to

impose remedies aimed at preventing leverage of significant market power from one

market to another, closely related, market. It should be clear that the undertaking which

has significant market power on the first market may be designated as having significant

market power on the second market only if the links between the two markets are such as

to allow the market power held in the first market to be leveraged into the second market

and if the second market is susceptible to ex ante regulation in accordance with the

criteria defined in the Recommendation on relevant product and service markets1

Art 8.2 (b)

(b) ensuring that there is no distortion or restriction of competition in the

electronic communications sector, including for the transmission of

content;";

Art 8.4 (fa) (g)

(fa) in paragraph 4, point (g) shall be added:

"(g) promoting the ability of end-users to access and distribute information or

run applications and services of their choice;

Art 9.1 Access directive

Article 9 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

"1. National regulatory authorities may, in accordance with the provisions of

Article 8, impose obligations for transparency in relation to interconnection

and/or access, requiring operators to make public specified information, such

as accounting information, technical specifications, network characteristics,

terms and conditions for supply and use, including any conditions limiting

access to and/or use of services and applications where such conditions are

allowed by Member states in conformity with Community law, and prices.

Annexe 1 point 19 auth directive

"19. Transparency obligations on public communications network providers

providing electronic communications services available to the public to

ensure end-to-end connectivity, in conformity with the objectives and

principles set out in Article 8 of Directive 2002/21/EC (Framework

Directive), disclosure regarding any conditions limiting access to and/or

use of services and applications where such conditions are allowed by

Member States in conformity with Community law, and, where

necessary and proportionate, access by national regulatory authorities to

such information needed to verify the accuracy of such disclosure."

For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Amendment 138 saved - but not the Internet , iptegrity.com, 21 April 2009.