On July 3rd, after more than ten hours of discussion, the three major EU institutions — the Commission, Parliament and Council — reached a political agreement on the text of the Telecoms Single Market (TSM) Regulation, a contentious piece of EU legislation that includes continent-wide provisions on Net Neutrality. Today, the Industry Committee of the European Parliament has formally approved this text.
Does the finalised TSM text actually guarantee Net Neutrality protections across the EU? The short answer is: maybe yes, maybe no.
As we explain below, the text has been clarified and improved, but lacks elements that would provide solid footing for Net Neutrality in Europe, such as an outright ban on zero rating [PDF].
What decisions have been made?
The EU institutions have sought to complete their work on the TSM Regulation, building on the preliminary agreement reached Monday, June 29, on the core text. They agreed upon [PDF] the recitals — key elements for interpreting the text — on Friday, July 3rd, making necessary improvements to the text.
The agreed-upon text includes the principle of Net Neutrality without ever naming it:
“Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.”
With this language added to assert the general principle of non-discrimination in the text, it appeared that EU lawmakers were delivering on the repeated promise of enshrining Net Neutrality. Thanks to input from the Parliament, the EU institutions further improved the text, by including criteria to help define “specialised services” so as to avoid creation of a two-tiered internet:
“There is demand on the part of content, applications and services providers to be able to provide, as well as on the part of end-users for the provision of electronic communication services other than internet access services, for which specific quality of service levels, not assured by internet access service, are necessary. Such specific quality levels are, for instance, required by some services responding to a public interest or by some new machine-to-machine communications services. Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services should therefore be free to offer services which are not internet access services and which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet the requirements of the content, applications or services for a specific level of quality. The national regulatory authority should verify whether and to what extent such optimisation is objectively necessary to ensure one or more specific and key features of the content, application or service and to enable a corresponding quality assurance to be given to end-users, rather than simply granting general priority over comparable content, applications or services available via the internet access service and thereby circumventing the provisions regarding traffic management applicable to the internet access service.”
What are the remaining issues?
The text leaves it up to the 28 National Regulatory Authorities to decide what is or is not a “specialised service,” which means that enforcement of the rules remains in question. Without strict interpretation of the text, there could potentially be 28 different implementations of the rules across Europe, causing risks of abuse, legal uncertainty for internet users and the internet industry.
In addition, the provisions on traffic management appear to be contradictory, since the text allows for a large number of exceptions to the general rule of treating traffic equally. We need further clarification on this point to avoid deviations from the rule and guarantee the best effort internet.
Finally, proposed language to ban zero rating is now gone from the final agreement. This could lead to legal uncertainty, as there appears to be a number of ways to interpret the text:
1. The text could be interpreted as deferring to Member States on zero rating. Since there is no mention of zero rating in the text, and recital 12 allows Members States to “adopt more far-reaching measures” to safeguard internet access, it’s possible that such measures could be interpreted to include rules on zero rating. Refusal by EU legislators to tackle the zero rating issue head on could then fragment the EU market, since Member States could potentially make different decisions.
2. Lawmakers may erroneously believe that zero rating can co-exist with Net Neutrality. According to the European Commission’s latest press release on the open internet, zero rating services could be authorised under supervision from the national authority, since, according to the Commission, these services do “not block competing content”. We fundamentally disagree with this analysis. Zero rating programmes such as Facebook’s Internet.org deliver access to some websites but not all of the internet, resulting in unequal access — the opposite of Net Neutrality. Further, the Commission’s analysis shows that it has a flawed understanding of how the internet works. Not only does it ignore the impact zero rating would have, it also sees the internet as a one-way communication channel. Guaranteeing Net Neutrality and access to the internet is not only to ensure equal access to content, but also equal ability to impart information.
In both cases, clarity on zero rating is necessary to ensure that no discrimination will be permitted in the network.
What will happen now?
Now that the text has been finalised at the political level, it has been formally ratified by the European Parliament’s Industry Committee (ITRE). The text will next be presented to the Council of the EU for ratification and to the EU Parliament for approval in a plenary session in fall 2015.
Any proposed modification to the text will only be possible during the plenary vote. The EU Parliament did good work last week to improve the text. We urge MEPs to follow up on that work and make the changes necessary to achieve legal certainty in the text and ban altogether discriminatory practices such as zero rating.
Read the full analysis of the text here.