The European Commission has circulated a draft declaration on "net neutrality". But is the ability to make comments on  the restrictive behaviour of network providers such as BT or Deutsche Telekom, the same thing as enforcing net neutrality? Or is it just intended to dupe  European citizens who are demanding a principle of net neutrality in the Telecoms Package?

 

Careful analysis of the Commission's "net neutrality" statement, reveals instead a statement concerning the monitoring of restrictions to Internet services and applications, where the Commission may

 

only pass on comments to national regulators. What should have been a welcome step forward by the European Commission, is instead, a dangerous step backwards. It will underpin even further the restriction of the Internet, and graduated response measures.

The Commission and the Council are proposing this "declaration" to be attached to the Telecoms Package, at the same time as they will wipe out Amendment 138. The European Parliament would be well advised to reject the "declaration" .  

What European citizens groups are calling for is a full principle of net neutrality incorporating  open access and end-to-end connectivity built into the Telecoms Package. What's needed as a minimum is a clear, and unambiguous guarantee of that principle. It should be situated in the Framework directive (Trautmann report). Ideally, it should be accompanied by  a set of amendments to the Package which specify powers for regulators to audit the network operators' behaviour.

 

The Commission's declaration is reproduced below, with analysis.

 

Basics on EU law and net neutrality:

Net neutrality is about open access to all content, services and application.  It is about end-to-end delivery of communications services. Anything else, is not net neutrality.

 

The Telecoms Package sets out the rules for the running of communications services in Europe. It tells the network operators what they must to do, in order to provide the communications services that European citizens want.

 

If net neutrality is to be guaranteed, open access to all content, services and applications, along with end-to-end connectivity, must be written into the Telecoms Package at the framework level. If it is not there, operators will have no obligation to provide it.

 

On the regulation of networks in Europe:

The telcos are responsible for running public communications services. I stress the word public, because they are services that are offered to all citizens, and the telcos may not choose who they sell to. The telcos  are private companies, but the service they make available is a public one and therefore, they have responsibilities to the public, which the regulator should oversee on our behalf. 

 

However, the powers of the regulator have been weakened, not strengthened, in the Telecoms Package. The new Pan-European regulator,  Berec , has no power and Mrs Reding herself fought for more power in the Council session of 27 November last year, but she lost.

 

The Article 22.3 referenced by the Commission, was weakened by amendments tabled to the Harbour report  and this is a matter of record, because the amendments are documented. The Commission would have had the power to set terms for operators across Europe, but this was turned around, so that the Commission may only issue comments, with no enforcement powers against the regulators or the operators.

 

Article 20.1 and 21.3 also referenced by the Commission, were also tabled to the Harbour report . These so-called ‘transparency' provisions, are just a one-way provision, and can be interpreted as permitting restriction of the Internet.

 

The Telecoms Package relies on competition law, but competition law does not apply to many instances of Internet blocking, and also many of the companies and individuals who may be affected by it, will not have the funds to sue under competition law.

 

So, careful analysis of the Commission's "net neutrality" statement, reveals instead a statement concerning the monitoring of restrictions to Internet services and applications, where the Commission may only pass on comments to national regulators.

 

Analysis of the European Commission's "Declaration on Net neutrality":

1. From the Commission declaration:

regulatory principle to be promoted by national regulatory authorities1,

 

Note 1 refers to Article 8.4(g) of the Framework direcive. This reads as follows:

 

National regulators shall promote the interests of European citizens by ...promoting the ability of end-users to access and distribute information or

run applications and services of their choice;

 

This  is no principle. Being ‘able' to do something, is not the same thing as having a ‘right' to do it. The concept worked out by the EU is that different providers will offer different access, and users will change provider. This concept fails to take account of the lack of choice in some national markets such as Germany, and the difficulties in changing provider even where there is choice, because for example,  the email address may be linked to many other activities, and changing provider becomes as onerous as moving house or office, especially for a small business.

 

2. From the Commission declaration:

, alongside the strengthening of related transparency requirements2

Note 2 refers to Articles 20 and 21 of the Universal Services directive (USD/Harbour report):

USD Article 20.1 (b)

Network providers shall include in the contract :

 *information on any other conditions limiting access to and/or use of

services and applications, where such conditions are permitted under

national law in accordance with Community law,

*any restrictions imposed by the provider on the use of terminal

equipment supplied;

 USD Article 21.3 c and d

(c) inform subscribers of any change to conditions limiting access to and/or use

of services and applications, where such conditions are permitted under

national law in accordance with Community law;

(d) provide information on any procedures put in place by the provider to

measure and shape traffic so as to avoid filling or overfilling a network link,

and on how those procedures could impact on service quality;

 

Read USD Article 20 and 21  in conjunction with the Commission text below, where "the commission will monitor the implementation of these provisions"  - and ask - what exactly will the Commission be monitoring? One interpretation is that the Commission will be monitoring the 'conditions limiting access'. In other words, it will be monitoring restrictions to the Internet. If this declaration is allowed to proceed, it seals in even further the right of operators and governments to restrict the 'Net. 

That is not my understanding of net neutrality, nor does it comply with any definition that may be found in any literature on the subject. 

 

Out of interest, the text on 'filling the link' was copied from Wikipedia, and is meaningless in this context. (See my previous article). 

 

3. From the Commission declaration:

 

safeguard powers for national regulatory authorities to prevent the degradation of services ... The Commission will monitor closely the implementation of these provisions in the Member States,...will invoke its existing competition law powers

 

I am fairly certain that  the Commission has no  powers to act in respect of Article 20 or 21.

The Commissions powers referred to are in Universal Services directive Article 22.3 , reproduced in full below. This provision is intended to address throttling by network providers. As above, the Commission's powers to act under this provision was weakened in the European Parliament process, including a last minute amendment in the Second Reading which MEPs had no time to scrutinise - indeed, I wonder if any of them realised that it had happened?  This provision renders the Commission  virtually powerless.

It has no powers under competition law to address situations where Internet content, services or applications are being blocked ( with the sole exception of voice over IP), because competition law as applied to the Telecoms Package only applies to public telecommunications  service. 

Out of interest, it would be good to ask the Commission what it means by the 'net freedoms' of European citizens. There is no such 'net freedom' defined in EU law to date.

 

Here is the full text of the European Commission declaration on "net neutrality":

 

"The Commission attaches high importance to preserving the open and neutral character of the Internet, taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities1, alongside the strengthening of related transparency requirements2 and the creation of safeguard powers for national regulatory authorities to prevent the degradation of services and the hindering or slowing down of traffic over public networks3. The Commission will monitor closely the implementation of these provisions in the Member States, introducing a particular focus on how the "net freedoms" of European citizens are being safeguarded in its annual Progress Report to the European Parliament and the Council. In the meantime, the Commission will monitor the impact of market and technological developments on "net freedoms" reporting to the European Parliament and Council before [the end of 2010/ the end of October 2010] on whether additional guidance is required, and will invoke its existing competition law powers to deal with any anti-competitive practices that may emerge."

 

 

1 Article 8(4)(g) Framework Directive

2 Article 20(1)(b) and 21(3)(c) and (d) of the Universal Service Directive

3 Article 22(3) of the Universal Service Directive 

 

The European Commission's representative on the Telecoms Package Conciliation Committee is Rudolf Strohmeier , who is a close aide to Viviane Reding. 

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Universal Services directive Article 22.3

 

In order to prevent the degradation of service and the hindering or slowing down of

traffic over networks, Member States shall ensure that national regulatory authorities

are able to set minimum quality of service requirements on an undertaking or

undertakings providing public communications networks.

National regulatory authorities shall provide the Commission, in good time before

setting any such requirements, with a summary of the grounds for action, the

envisaged requirements and the proposed course of action. This information shall

also be made available to BEREC. The Commission may, having examined such

information, make comments or recommendations thereupon, in particular to

ensure that the envisaged requirements do not adversely affect the functioning of

the internal market. National regulatory authorities shall take the utmost account

of the Commission's comments or recommendations when deciding on the

requirements.

 

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) The European Commission's net neutrality con http://www.iptegrity.com 19 October 2009.