CDT Responds to BEREC’s Draft Net Neutrality Guidelines

Written by Scott Craig

On 6 June, the Body of European Regulators for Electronic Communications (BEREC) published its ‘Guidelines on the Implementation by National Regulators of European Net Neutrality Rules’. The guidelines’ purpose is to ensure consistent application of the Telecoms Single Market (TSM) Regulation, adopted in an EU law to safeguard open internet access.

The TSM Regulation laid down important basic principles of non-discrimination of internet traffic, but left several important questions to be determined by National Regulatory Authorities (NRAs). The Regulation provided for BEREC to develop detailed implementation guidelines, and BEREC will finalise them by the end of August 2016.

CDT contributed actively to the TSM Regulation process from the publication of the Commission’s proposal in September 2013 until its adoption in late 2015. We welcomed the final text, and noted that while it could have been more precise on what services ISPs may run in addition to Internet Access Services, what traffic management practices are allowed, and how commercial practices such as zero-rating should be treated, the same can be said of the US Open Internet regulation. Regulators will need to deal with these complicated questions in an evolving technology and market environment.

In our assessment, BEREC’s draft guidelines provide a very strong framework to do this, and we believe that they give NRAs the necessary tools to protect the rights of internet users throughout the European Union. We commend BEREC for producing a comprehensive set of guidelines in a short timeframe and hope that our suggestions for clarification on some important issues can be incorporated into the final set of guidelines.

Specifically, we raise the following issues:

CDT’s comments welcome the clarification that ISPs will not be permitted to prevent or punish users who choose to access their phone’s internet connection with different devices. Preventing tethering restrictions will have profound and positive effects on user choice and we urge national regulators to examine existing ISP policies as a matter of urgency.

We also welcome BEREC’s clarification that encrypted traffic cannot be subject to discriminatory traffic management simply because it is encrypted. This protection is crucial to promote greater uptake of secure protocols by service providers and greater protections for users.

We are concerned that the exemption from content monitoring restrictions for ensuring network integrity lack the stringent safeguards necessary to ensure it cannot be used to circumvent the regulation. Rather than try to narrow this exemption in a way that would hinder legitimate network security activities, we recommend that the guidelines be more explicit about restrictions on the use of any data gathered under this exemption.

We commend the guidelines’ multi-faceted approach to assessing the potential harms of commercial practices like zero-rating and note their similarity to our own assessment framework. However, we are concerned that the guidelines lack sufficient detail for NRAs to make consistent determinations. In particular, the draft does not give any guidance to NRA’s on what constitutes a “material” reduction in user choice.

We ask for clarification as to what constitutes interference or alteration of content by an ISP. Specifically, we ask that insertion (or “injection”) of content by the ISP is encompassed within the meaning of alteration and should be seen as a violation of the regulation unless undertaken with explicit user consent.

Finally, there is a strong commercial incentive for any ISP offering a bundled application to give it preferential access to network resources in order to ensure the user experience of their promoted application. We believe that the guidelines could more clearly explain that while a bundled offer may subsidise an application’s subscription price, it may not subsidise the data usage associated with that application.

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