European Parliament Net Neutrality Proposal Moving Forward

Officials and politicians have wrestled for several years with the question of net neutrality: should Europe lay down in law a basic principle of non-discrimination of traffic on the internet, or would – as European telecoms operators have argued for years – such measures burden Europe’s telecoms industry with new unwelcome regulation?

This month, the European Parliament’s Industry Committee is set to vote on an important and controversial piece of legislation which will introduce an EU-wide net neutrality rule for the first time ever. The Committee’s vote precedes final adoption by the Parliament in April. Next, EU Member States will review and amend the proposal, meaning that the legislative process has a long way to go.

Net Neutrality in Europe took a big step forward when, in the eleventh hour of the current Commission’s term in office, European Commission Vice President Kroes decided to legislate. In September, she issued a proposal for a regulation, the Connected Continent Regulation, which included a wide range of measures, from spectrum management to authorizations to roaming and international call rates – as well as provisions on net neutrality. Much of what she addressed reflected CDT’s previous calls for an EU-level net neutrality legislation.

CDT applauded the Commission’s initiative, while also calling for specific improvements to the text. And to be sure, the Commission’s proposal was a vast improvement over an earlier draft that had been circulated during the summer. However, the Commission’s proposal came under fire from many sides and for many reasons. Several people argued that to bring forward such a complex and wide-ranging piece of legislation so near the end of the Parliament’s term did not allow proper vetting of the proposal.

On the substance, many net neutrality advocates criticized the Commission’s proposal for specifically allowing network operators to partner with content and applications providers to develop ‘specialized services’ with the possibility of higher, speed and quality characteristics. Some net neutrality advocates have seen this as fundamentally undermining the basic net neutrality principle. This is not CDT’s position. We do not object to the Commission’s decision to permit specialized services. The Commission’s text includes a number of important safeguards to ensure that specialized services are not allowed to interfere with the provision of general internet access services.

However, the Commission’s draft did not clearly establish the principle that services in the Internet access category should carry traffic on a fundamentally nondiscriminatory basis. While the proposal bars blocking, degradation, and discrimination against specific services or content, it arguably leaves Internet access providers free to pick favorites and prioritize certain traffic on the theory that they are discriminating in favor or specific services, rather than against anyone in particular.

The European Parliament Industry Committee is now considering what changes to make to the Commission’s text. One amendment put forward by the Socialist and Democrats group attempts to tackle this problem by introducing language that prohibits discrimination ‘between’ services. The amendment should be supported by the Committee and will, if adopted, constitute a meaningful improvement of the Commission’s draft. However, there is no question that, whichever amendments Parliament chooses to support, further changes to the text will be made by Member States over the coming months. It is also important to underline that no matter what the final text looks like, telecoms regulators across the Union will need to keep monitoring market developments to ensure that operators do not blur the lines between specialized and internet access services, and that traffic management measures are not misused to prioritize certain applications or content for commercial reasons.

Fundamentally, we need this legislation to firmly establish the principle that users decide what applications and content they want to access, and that these choices should not be interfered with by the companies that provide internet access services. The legislation is not the end of the story, but will represent a significant step forward for net neutrality in Europe.