Berec, the EU telecom regulator, has published its final guidelines for national regulators on enforcing the EU's net neutrality legislation which took effect in April. A public consultation by Berec earlier this year on the draft guidelines attracted nearly
half a million responses
as the public, governments and private companies sought to weigh in on how non-discrimination of internet traffic should be maintained. Berec also published a summary of these responses, ahead of a presentation of the guidelines at a press conference in Brussels.
The law, which took effect 30 April, sets a common standard for net neutrality throughout the EU. Internet providers are required to treat all traffic equally, with no blocking or slowing specific content, applications or services from selected senders or to selected receivers.
Berec said at its presentation that this does not include a ban on zero-rating "per se". Whether ISPs may charge less or nothing for data to use certain applications will depend on a number of factors to be evaluated by national regulators, including whether this limits end-user rights or choice and the market shares and commercial interests of the respective providers.
A clear infringement of zero-rating mentioned in the guidelines is that users cannot continue to access a specific application free after using up their data cap. However, Berec did add an exception to the above in the final guidelines allowing free access to the ISP's customer service website or app even after using up the data allowance.
The main exceptions allowed to the general net neutrality principle are compliance with court orders and laws, preventing network congestion and combating cyber-attacks. If such traffic management measures are needed, they must be "transparent, non-discriminatory and proportionate" and may not last any longer than necessary.
Berec's guidelines set out how traffic management must occur independent of users and applications, in order to ensure non-discrimination. If needed, any traffic management should be conducted according to different categories of traffic, so applications with similar QoS requirements (eg, latency, bandwidth, packet loss) are treated the same. Traffic management may never be based on commercial requirements of the ISP, nor should it ever involve monitoring of the content of traffic.
Operators may still offer "specialised" services, such as guaranteed speeds or quality for specific applications or customers like businesses, as long as this is necessary for the particular service (ie it cannot otherwise be provided over the open internet) and does not impact the overall internet quality for other users on the network. Specific examples of such services mentioned in the guidelines include VoLTE, IPTV, 5G network slicing or remote telemedicine services.
Berec said at the press conference that the final guidelines clarify that no ex ante approval will be required from regulators in order to offer specialised services, nor for traffic management techniques or other commercial practices. All enforcement will be conducted ex post by regulators.
In a further step towards transparency, the law also requires ISPs to provide more details about the speeds delivered for broadband services. For fixed networks, this should include an indication in customer contracts and in marketing of the minimum and maximum speeds customers can expect to receive (achievable regularly, such as at least once a day) and the normally available speed (95% of the day). Mobile providers must state the maximum expected speed, which may be detailed further according to location with maps or user technology (3G, 4G etc), and the 'advertised speed' which the provider is realistically able to deliver. National regulators may further expand these requirements.
ISP information must also include details on the traffic management techniques they employ, so users can judge if this may affect their services, and any specialised services in the user's contract, such as IPTV, that could affect the internet connection. End-users must be notified about how they can complain if the speed varies significantly or regularly from the expected offer. The transparency rules will apply to existing contracts, but any changes to contracts are still subject to national laws.
In enforcing the rules, the national regulators will be allowed to order ISPs to stop or adapt certain practices or services that could be degrading internet access, set minimum technical or QoS requirements, and even require a change in network capacity to ensure specialised services are not impacting other users. The regulators' ability to issue fines for net neutrality violations will depend on their powers as enshrined in national legislation, as the EU law offers no details on this.
In addition, the national regulators will be required to publish annual reports on their observations and enforcement actions, which will also be sent to Berec and the European Commission. The first reports will be due by 30 June 2017. Berec will use the reports for future reviews and updates of the guidelines.
In the event of different interpretations of the guidelines, Berec said it will be up to the courts to decide any appeals against national regulators' decision. Furthermore, many aspects of the enforcement will depend on national laws and market conditions, said Sebastien Soriano, head of French regulator Arcep and incoming Berec chairman for 2017, noting that regulators will be required to take into account factors such as ISPs' market power in decisions on issues like zero rating. As a result, international groups may find that their treatment could vary from country to country, based on their local market position, he said.
Berec also said that it has no say on other net neutrality legislation passed by EU member states and it would be up to the European Commission to challenge these through infringement procedures or for other players to consider court appeals. This in response to a question on the legislation already passed by the Dutch lower house of parliament, prohibiting all tariff differentiation for internet access services for specific applications.
Berec said the Dutch legislation "goes quite far" and the ultimate question for any legal appeal would be whether it is in line with the EU net neutrality regulation and not Berec's non-binding guidelines. An EC representative at the press conference said it was too early to say whether the Commission would take action against the Dutch law, especially as the bill had yet to pass parliament fully.
Source: http://www.telecompaper.com/news/berec-issues-final-net-neutrality-guidelines--1159869
