Europe Has One Last Shot To Ensure Its Net Neutrality Rules Actually Work

from the closing-the-loopholes dept

As we noted last October, Europe passed net neutrality rules that not only don't really protect net neutrality, but actually give ISPs across the EU's 28 member countries the green light to violate net neutrality consistently -- just as long as ISPs are relatively clever about it. Just like the original, overturned 2010 net neutrality rules in the States, Europe's new rules (which took effect April 30) are packed with all manner of loopholes giving exemption for "specialized services" and "class-based discrimination," as well as giving the green light for zero rating.

The rules are so bad, Sir Tim Berners-Lee complained at the time that they even let ISPs violate neutrality -- just by claiming they're preparing for future, phantasmic congestion:

"The proposal allows ISPs to prevent “impending” congestion. That means that ISPs can slow down traffic anytime, arguing that congestion was just about to happen. MEPs should vote to close this loophole. If adopted as currently written, these rules will threaten innovation, free speech and privacy, and compromise Europe’s ability to lead in the digital economy. To underpin continued economic growth and social progress, Europeans deserve the same strong net neutrality protections similar to those recently secured in the United States. As a European, and the inventor of the Web, I urge politicians to heed this call."

As we've seen here in the States, congestion has long been used as a bogeyman to justify anti-competitive behavior, from using the bogus "Exaflood" to imply the Internet would implode if net neutrality rules were passed, to equally false claims that usage caps and overage fees are necessary to manage network capacity.

While the rules are flimsy, the European Union's Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules. And while this could have been an opportunity to close a number of the loopholes in the rules, a leaked copy of the BEREC guidelines (pdf) suggests that's not really happening. While BEREC appears to have tightened some language surrounding "specialized services," most of the problems (turning a blind eye to zero rating, allowing ISPs to justify violations by claiming future congestion) appear to remain fully intact in this latest update.

Yes, the rules block ISPs from engaging in the most heavy-handed of behaviors (like blocking entire websites or services), but that's not much of an accomplishment, since no ISP was willing to commit PR seppuku in such a fashion anyway.

As in the States, the lion's share of the press doesn't appear to be really helping matters. Perusing the news wires you'll see numerous instances where the media calls these rules "tough" despite them being anything but. Anonymous telecom sources are also given ample opportunity to complain about the "uncertainty" of the rules, despite the fact that having massive, tractor-trailer-sized loopholes is the best possible outcome for them:

"Given that we do not know what specialized services may emerge in the future, NRAs should assess whether a service qualifies as a specialized service on a case-by-case basis," it adds. One industry source said that while it was a positive sign that BEREC had not created a list of what can be considered specialized services, the fact that each new application will have to be assessed individually is a source of uncertainty for operators. "With restrictive guidelines, you can forget 5G and connected cars," said another industry source."

Yes, sorry, Europe -- you're not going to get fifth-generation wireless or connected vehicles unless telecom regulators make already weak net neutrality rules -- even weaker. The guidelines were formally presented June 6 at the BEREC press conference in Brussels. They'll be adopted in August after consultation with "interested parties" (read: predominantly telecom lobbyists), giving net neutrality advocates one last shot over the summer to ensure that the EU's net neutrality rules actually defend net neutrality, instead of legalizing the abuse of the idea.

Filed Under: berec, broadband, competition, eu, europe, net neutrality