Report from Brussels

Pushed by an AT&T lobbyist, some revised amendments to the Telecoms Package could usher in filtering, and have rocketed net neutrality from a non-issue to one of the hottest under discussion in the Telecoms Package trialogues.

A raft of new "compromise" amendments to the Telecoms Package is circulating in Brussels. On the surface, they state that telcos, network operators and ISPs should be able to "address unjustified degradation of service", and impose "reasonable usage restrictions, and price differentiation" without any regulatory interference. The sub-agenda however, is that these legal texts could enable network operators to shrug off accountability for filtering, throttling and degrading user traffic, including access to content. With obvious implications for the neutrality of the network.

I first reported on these amendments at the end of last year, when three amendments were proposed - two Recitals addressing 'network management' and 'degradation of service', and a revision to Article 22(3) of the Universal Services directive. Since then however, a new Recital and an amendment to Article 21 have been added, which re-introduce the concept that users should be informed of 'restrictions on access to content and services'. This language shifts the onus back from the network operator to the user. It had been deleted by the Council.

The main driving force behind the amendments is the Brussels lobbyist for the American telecoms operator AT&T, who has been actively promoting his amendments inside and outside of the European Parliament. I have spoken to at least half a dozen people on this topic, who have all given me the same name. It's also my understanding however, that the issue of net neutrality is the subject of a document being circulated by other lobbyists working for

the UK regulator Ofcom. The intended recipients of this document are believed to be, among others, the rapporteurs for the Telecoms Package directives.

AT&T is supported by an alliance of Europe's largest telcos, network and mobile phone operators including Vodafone, ETNO, and Virgin Media. Other supporters include the equipment makers Cisco, Alcatel-Lucent, Nokia-Siemens, Ericsson and Ciena. The alliance calls itself the Net Confidence coalition. Interestingly, Ofcom is the sole organisation quoted in in the AT&T coalition briefing paper which accompanies the compromise amendments. It is also interesting that the UK's Minister for Industry and former head of Ofcom, Lord Carter, said at the Council of Ministers meeting on 27 November, that he would like to see the language on 'restriction of service' re-introduced for users contracts.

And there is a seminar on the topic of net neutrality next Wednesday 28th January, hosted by UK MEP Sharon Bowles, who incidentally represents my area. From the information on the invitation, there is only one speaker, and it looks as though he will present a viewpoint akin to the industry lobby. On the invitation it implies that net neutrality will restrict Internet growth and goes on: "Legislation currently under consideration would prevent network operators from managing internet traffic. This could lead to unintended consequences, including a significant decrease in innovation online." It looks like a rather one-sided debate. Couldn't Ms Bowles find a lobbyist to take the other side? Surely Skype would have have been only too delighted!

However, the lobbying is only part of the story. It's my understanding that the issue of net neutrality is earmarked as one of the trialogue issues for the Framework directive, and the AT&T amendments will be on the agenda in respect of the Universal Services directive. This is where the debate stops and the results kick in.

Here is the original AT&T lobbying document.

And here is the text of the two new amendments.

Recital 14 [...] Given the increasing importance of electronic communications for consumers and businesses, users should be fully informed of [...] the traffic management policies [...] of any relevant restrictions and/or limitations imposed on the use of the electronic communications services by the service and/or network provider with which they conclude the contract. [...]. Where there is a lack of effective competition, the relevant national [...] authorities should use the remedies available to them in Directive 2002/19/EC to ensure that users' access to particular types of content or applications is not unreasonably restricted.

Article 21( 3).

Member States shall ensure that national regulatory authorities are able to oblige undertakings providing connection to a public electronic communications network and/or electronic communications services to inter alia:

(b) inform subscribers of any change to the provider's traffic management policies [...]; restrictions imposed by the undertaking on their ability to access content or run applications and services of their choice.

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

Original reporting by iptegrity.com. Remember, you read it here first!