CDT & Public Knowledge BEREC NTP 2019 Consultation Response

In Response to the Body of European Regulators of Electronic Communications Consultation on Common Approaches to the Identification of Network Termination Point in Different Network Topologies

Comments of the Center for Democracy & Technology and Public Knowledge

21 November, 2019

Defining the network termination point (NTP) matters. It impacts the scope of regulation for ISPs, the choice and availability of terminal equipment for end users, network security and management, and data privacy. As we consider how best to serve internet users’ needs, it is therefore appropriate and necessary to achieve a common approach to NTPs and to provide common guidance to the national regulatory authorities responsible for implementing regulations. CDT and PK appreciate BEREC’s thoughtful and thorough approach to this issue and offer the following responses to the points raised in the consultation document.

In general, CDT and PK approve the proposed guidelines to help national regulatory authorities (NRAs) approach defining the NTP from a common perspective. However, to achieve a more harmonised approach and market, CDT suggests that BEREC consider designating either Point A, B, or C as the default definition of the NTP. Overall, CDT and PK support point A as the best choice for the NTP. We recognize that the structure of BEREC’s proposed guidelines allows national regulatory authorities to determine the NTP definition on a more flexible basis. However, CDT and PK suggest that BEREC consider proposing Point A as the default NTP, with the option for NRAs to make a different determination, for example where certain network topologies require a different assessment.

Further, we suggest that BEREC consider a slightly different description of Point A. Rather than describing Point A as depicted in Figure 2, essentially “before the modem,” we propose that Point A should be considered the first point at which the customer can attach standardised network interface equipment, such as devices that support DOCSIS or Ethernet. This aligns the NTP more closely with both the physical space within end users’ control and with end users’ understanding of network topologies. We understand that this may, in some cases, merge Points A and B and in others merge Points B and C, but it would also reduce confusing abstractions like defining the NTP as a point residing inside a single piece of terminal equipment on the customer premises.

Our perspective as civil society organisations allows us to consider the users’ goals and needs as our fundamental touchpoint, and that perspective may be different from internet service providers who are obligated to pursue shareholder goals. Given the standardized nature of internet communication protocols, in most cases we are dubious that ISPs are likely to demonstrate sufficient objective technical necessity to justify their own determination and control of TTE equipment used by their subscribers. Additionally, the pro-competitive aims of Directive 2008/63/EC weigh strongly against any NTP other than Point A.