Three key takeaways from Europe’s new net neutrality guidelines
This past Tuesday, the Body of European Regulators for Electronic Communication (BEREC)released their net neutrality guidelines. To recap, the EU’s net neutrality rules came into effect April 30; BEREC’s task has been to create the guidelines for implementing these rules. While BEREC’s chairman promised that their work would stay faithful to the law, the end result indicates something different. What’s in the new updated guidelines? Here are three key takeaways:
1. Content application providers have the same rights as as human users
In the new guidelines, BEREC notes that content application providers “are protected as end-users under the regulation.” “Corporation personhood” is the legal notion that a corporation, separate and apart from the humans it is made up of, is granted the same legal rights that natural persons enjoy. The non-profit Reclaim Democracy has pointed out that “granting corporations the status of legal “persons” effectively rewrites legislation to serve corporate interests as though they were human interests.” It seems odd that a consumer/civil society group would prioritize the needs of a technological system above users, but as SaveTheInternet.eu declared on its website in response to the new rules, the “Internet wins”. As leading free speech scholar Ellen P. Goodman explains, “The theory of innovation and freedom that animates net neutrality revolves around the equality and liberty of edge providers. User interests are derivative of edge provider interests.”
As I described in an earlier post, SavetheInternet.eu is a key stakeholder for BEREC, which opened its press conference by noting that the organization delivered the bulk of the 480,000 of the “unprecedented” number of submissions to a BEREC consultation. While BEREC describes its consultation process as “transparent and inclusive,” it will publish only 46% of the total comments received as SavetheInternet respondents frequently choose to make their submissions confidential. All told, BEREC reports just 1000 substantive submissions in which responders read the guidelines and made original comments.
2. Traffic management remains murky and complex
BEREC’s guidelines appear to force operators to overbuild capacity rather than allow them to efficiently manage their networks. This means that consumers will pay more across the board, with low-volume users (like grandmothers) effectively subsidizing high-volume users of bandwidth (gamers, for example). Additionally, new and competitive applications may not get the specialized service they need to bring disruptive innovations to the market (and thus never become a threat to established giants such as Netflix). The guidelines limit broadband providers’ ability to develop new and innovative services such as VoLTE, IPTV and real-time health on their own networks, where they can provide better privacy, security, and quality. Moreover non-broadband providers are exempt from the net neutrality rules when deploying specialized services in 5G spectrum, unlike broadband providers. Such conflicting and arbitrary distinctions may contravene the technological neutrality requirements of EU law and invite legal challenge.
3. National regulatory authorities have many new obligations
The guidelines outline considerable expectations for national regulatory authorities (NRAs) to create standards for transparency and quality; supervise networks; enforce the law; and report their activities to BEREC. It is not clear whether NRAs have the competence and resources to conduct these tasks—and what kind of bad behavior BEREC expects by ISPs that would justify such a significant deployment of resources. For example the guidelines instruct national regulatory authorities to conduct network speed tests, allowing consumers to get refunds if internet speeds do not meet specified levels. Not only do these rules ignore the fact that speed is mostly out of the hands of ISPs, they constrain the ability of ISPs to effectively manage networks to ensure optimal experiences for their users. Importantly, ISPs cannot sell end-to-end speed guarantees today, and without prioritization, they never can. Interestingly, in the what is perhaps the world’s most competitive broadband network market, the Netherlands, Dutch regulator ACM has launched apartnership with Google’s MLab to start such a measurement, complaint and penalty process, even though a number of network experts have questioned the reliability of MLab’s measures.
What happens next? Most likely, litigation
The guidelines also (reluctantly) admit the existence of the freedom to conduct business (paragraph 20) and the freedom for broadband providers to contract with end users (paragraph 31). BEREC’s rules may collide with other rules and regulations, particularly if they reduce competition, the foundation of EU telecom law. Moreover, should some countries take an excessive approach to curtail the freedoms of users and ISPs to contract, there may emerge claims of violation of the freedom of movement of services, a foundational principle in the EU. Effectively, the new guidelines may give rise to the very fragmentation that the EU’s net neutrality legislation sought to avoid. The guidelines are a gift to the legal profession for years to come.
Three key takeaways from Europe’s new net neutrality guidelines
Πηγή: TechPolicyDaily.com
