BEREC launches net neutrality guidelines

Further to this month’s update, the Body of European Regulators for Electronic Communications (BEREC) yesterday published the final version of its guidelines for National Regulatory Authorities (NRAs) on the implementation of the European Commission’s regulation on open Internet access.

This follows BEREC's consultation on the draft guidelines which generated an unprecedented number of responses. In its presentation accompanying the launch of the guidelines, BEREC reported that many competing responses were received: whilst some proposals called for stronger regulations, others (generally from service providers) suggested that weaker guidelines were needed, or that the guidelines went beyond the scope of the open Internet regulation. BEREC regarded this as evidence that the guidelines had struck an appropriate balance.

The guidelines relate to internet access services; private networks (such as internal corporate networks) and IP interconnection services are out of scope. Changes in the final version of the guidelines include clarification of how the guidelines relate to virtual private networks (VPNs) and the inclusion of example criteria NRAs could use to make assessments of whether networks are provided publicly (such as the contractual relationship under which the service is provided).

Commercial practices such as zero rating are not prohibited per se by the guidelines, which recognise that zero rating practices differ, and also note that “a zero-rating offer where all applications are blocked (or slowed down) once the data cap is reached except for the zero-rated application(s)” would infringe the regulation. The guidelines include criteria NRAs should use to assess such commercial practices on a case by case basis, such as the market position of the access and service providers involved.

The European Commission issued a statement welcoming the guidelines. Other organisations celebrating the guidelines included EDRi (an association of civil and human rights organisations across Europe), BEUC, the European consumer organisation and the U.S. Open Technology Institute. Also in the U.S. the Information Technology & Innovation Foundation (ITIF) published a statement describing the guidelines as “unnecessarily prescriptive” while Cable Europe (the association representing broadband cable operators ) responded that “much rests now on the use of these guidelines by regulators, which whilst allowing National Regulatory Authorities the necessary autonomy could result in a negative outcome for progressive innovation.” The European Telecommunications Network Operators Association (ETNO) also warned that it is “essential to avoid restrictive interpretations that would deviate from the spirit of the dispositions of the Open Internet Regulation”.

Also see commentaries from Network World, Ars Technica, BBC News, the Guardian (which focussed on the possible implications for services that restrict access to pornography or block ads) and ISP Review.