CDT & Public Knowledge Add Updates to BEREC 2019 Open Internet Guidance

In Response to the Body of European Regulators of Electronic Communications Consultation on Draft Guidelines on the Implementation of the Open Internet Regulation BoR 19(180)

Comments of the Center for Democracy & Technology and Public Knowledge

27 November, 2019

CDT and PK support BEREC’s continued efforts to guide national regulatory authorities (NRAs) as they implement the Open Internet Regulation. CDT provided feedback during BEREC’s initial consultation and believes the resulting guidelines have embodied the spirit of the strong, user-focused regulatory approach of the Regulation.

In general, the amendments and step-by-step assessment proposed in this draft build on this solid foundation. In particular, we appreciate that BEREC provides additional guidance for the assessment of commercial agreements like zero rating. These agreements can vary widely and their impact on consumers and relevant markets can depend on many interdependent factors. Therefore, a case-by-case approach, is the best way to ensure that potentially anti-competitive, content-discriminatory, or otherwise harmful arrangements are prohibited while still allowing arrangements that provide more choice and benefits to consumers without impacting users’ rights.

We also appreciate that BEREC’s guidelines anticipate some of the new network use cases and capabilities that may emerge in conjunction with 5G networks, such as Quality of Service guarantees. Although predicting the practical realities of these developing technologies is difficult, BEREC’s proposed guidance would help NRAs address some of the biggest concerns
associated with new capabilities like “network slicing.”

While we support BEREC’s draft proposals to update the Open Internet guidelines, we offer additional feedback on the following provisions.