In case you went on holiday and missed it: holidays have
been cancelled this Summer. Well, if you work on telecomms policy issues in
Brussels that is.
In February this year the European Commission fired
the starting gun on work on a single market for telecommunications. In what
is record time for a large organisation such as the European Commission it
produced a first draft for internal consultation in early July. With the
deadline for comments on 26th July, this leaves little time for, er, holidays
before a planned adoption by the College of Commissioners on 10th September.
Bureaucracy moving at Internet speed? May well be.
The proposed Regulation
deals with broad range of issues: roaming tariffs, radio spectrum,
authorisations, wholesale pricing and net neutrality. While the tone of the
pro-market package (so far) is welcome, it is this last item that we at the
CCIA are following closely, so important is it for the innovation system in the
Internet age. BEREC’s
work, showing that some 36% (or more than 200 million) of European mobile
subscribers can’t use Skype (and other services), illustrates why open Internet
rules are necessary. They would safeguard the interests of European consumers,
and Internet content, application and service providers across the Union, as
well as provide clarity to Internet Service Providers about what constitutes
reasonable traffic management.
However, the right legislative text is needed, not just the
right intentions. Article 20 of the proposed Regulation tries to set out these
‘rules of the road’. It needs more work.
First, there needs to be an overarching principle of
non-discrimination in the text. The political intent must be clear. The
risk of discrimination by ISPs against companies delivering content and
services over the Internet is real. It damages competition. It damages
consumers. It could damage our public realm as more and more services move
online.
The French electronic communications regulator, ARCEP, has
developed model language based on a broad principle of non- discrimination that
is a valuable point of reference.
This should not preclude operators from experimenting with
tiered pricing where users pay for the data they consume or pay for different
speeds, nor would it impede innovative managed services. The non-discrimination
principle aims to preclude network operators unfairly controlling what,
in content terms, users consume or produce on the open Internet and who provides
services to whom.
Secondly, any legislation should be introduced under
the assumption it will be enforced. To do this there needs to be a clear
distinction between ‘Internet access’ and ‘managed services’ in the text.
Currently there isn’t.
The term “managed service” refers to the way a network
operator provides services comprising content, services and/or applications
through electronic means marketed by the network operator over and above, and
separately from, internet access. These are value-added offers such as IPTV or
Video-on-Demand where users enjoy a guaranteed quality of delivery within a closed
network wholly operated and controlled end-to-end by the telecommunications
provider.
In contrast, ‘Internet access’ refers to the global public
network providing consumers with the ability to send and receive data by
using the Internet Protocol from all of the interconnected public and private
networks around the world that make up the Internet.
Clearly distinguishing the two will allow services to be
distinguished, thus making it possible to enforce the rules. It will give ISPs
flexibility and the assurance that they can develop new services, and protect
the open Internet.
Thirdly, reasonable network management must comply
with the principles of relevance, proportionality, efficiency, transparency and
non-discrimination. Article 20.2 of the draft has identified reasonable
grounds for legitimate traffic management. It needs to go further by stating
that traffic management practices must only be deemed reasonable if they comply
with general criteria of relevance, proportionally, efficiency, transparency
and non- discrimination, as well as existing laws including inter alia privacy
and data protection.
Finally, national regulatory authorities need to be
required and empowered to play a proactive role monitoring the open Internet. Without
regulators proactively supervising the market there will continue to be
behaviour that is harmful to consumer and to innovators.
Additionally, content and application providers need to have
standing to complain about discrimination by network operators; currently they
can’t. Finally, NRAs must develop efficient and timely processes for
investigating such complaints, so that remedies can be made quickly to minimize
damage to fast moving and innovative businesses that rely on their users’
Internet access for their revenue.
As with any legislation, clarity is key. The rules on the
open Internet should be unambiguosly pro-openness. The current draft prohibits
blocking and throttling and in the next breath states that “....providers of
content, applications and services and providers of electronic communications
to the public shall be free to agree with each other on the treatment of the
related volumes or on the transmission of traffic with a defined quality of
service”. Let’s clear this up, once and for all.
In the end, people will only buy high bandwidth broadband
because they want to access something on the internet. So blocking access to
certain services damages consumers, damages service companies, but damages
telecoms companies as well.
