As was widely reported a few weeks ago, Ministers from France and Germany wrote to European Commission Vice President Ansip (in charge of Digital Single Market) calling for the Commission to prepare legislation for “essential platforms.” The letters from the Ministers of the two most influential EU Member States coincided with a controversial resolution from the European Parliament, which among other things, called for drastic measures to be brought to bear in the Commission’s ongoing antitrust investigation of Google’s business practices.
The missive from the Ministers suggested, broadly speaking, that Internet companies should be brought under similar rules as those governing European telecommunications infrastructure providers, with respect to access and unbundling obligations.
If this message sounds familiar, it is because it has been repeated many times by the European telecommunications sector. For several years, European incumbent telecommunications providers have argued that sector-specific regulation requiring them to provide non-discriminatory access to infrastructure should be scrapped. Alternatively, they say, telecoms infrastructure regulation should be extended to a variety of mostly non-European Internet companies or platforms to create a “level playing field.”
The commercial logic of the telecoms’ sector’s lobbying is clear, and the reason why they invoke the term “platform neutrality” is also understandable. It serves to mix the ongoing debate on a draft regulation that includes provisions on net neutrality with the far broader, and vaguely defined, idea of platform neutrality. That French and German Ministers have now adopted these views as their own shows how effective this tactic has been.
The fundamental case for net neutrality rules in Europe and elsewhere rests on the observation that the consumer’s connection to the Internet is a de facto gateway and the provider of that connection is a de facto gatekeeper.
It makes sense to briefly set out why it is essential and justified to set rules on ‘net neutrality,’ and why the same logic cannot be ported to the many different types of content, services, and applications offered over the Internet.
The fundamental case for net neutrality rules in Europe and elsewhere rests on the observation that the consumer’s connection to the Internet is a de facto gateway and the provider of that connection is a de facto gatekeeper. There are prohibitively high costs associated with replicating existing wired infrastructure that was originally built – and in many cases still co-owned – by the state. In wireless communications, providers manage spectrum, a scarce resource, allocated by governments through various processes. These characteristics are specific to telecommunications infrastructure, and similar ones apply to other forms of infrastructure such as electricity, water, natural gas and so forth.
They do not apply to services, content, and platforms that people access via their Internet connection. On the contrary, any bookstore, music shop, or newspaper can make its services and products accessible to a global market place once it is connected to the Internet. This is the essence of the open Internet and that openness requires targeted and meaningful non-discrimination obligations for telecommunications providers. As documented by BEREC, the Body of European Regulators for Electronic Communications, regulations securing those obligations are both necessary and long overdue.
A level playing field cannot mean that an online bookshop or an internet-based social network is subject to the same set of rules that applies to communications infrastructure.
In the same way that the electricity company should not be in a position to favour installation of appliances from one manufacturer over those of another, an ISP should not be in a position to influence a user’s choice of content, applications, and services she accesses. This is the core of the net neutrality concept. By contrast, it would make no sense to subject manufacturers of electrical appliances to the same regulations as the electric company. For the same reason, a level playing field cannot mean that an online bookshop or an internet-based social network is subject to the same set of rules that applies to communications infrastructure.
Clearly, dominance and abuse of market power can arise in any industry, from automobiles to construction materials to transport, and must be constrained by effective enforcement of competition rules. Competition policy discussions are important but should not be conflated with the entirely different and very specific issue of non-discrimination in the link between a user and the global Internet. Setting the right net neutrality rules is not merely a matter of regulating conduct by commercial players. It is about ensuring that the Internet continues to function as a universally accessible space for innovation, commerce, communication, free expression, research, and public debate.
We encourage Ministers in EU Member States to distinguish these issues and maintain their focus on the adoption of a regulation with strong protections for the open Internet.