This article appeared on POLITICO. By David Meyer.
The compromise proposal strikes a balance between competing plans from the European Parliament and the Council of the European Union. European Commission negotiators have proposed restrictions on when broadband providers can give certain services higher priority than others, according to internal documents seen by POLITICO. As part of negotiations over the so-called Connected Continent package, the Commission last week proposed letting Internet service providers sell some services separately from regular Internet access in order to ensure high-quality transmissions. The compromise, however, comes with a catch: Internet service providers would only be permitted to set aside space on their networks for special services if regular customers wouldn’t suffer. Special services also could not be used as a substitute for what is available on the open Internet. The position strikes a balance between the European Parliament, which wants strict definitions of such specialized services in order to preserve the equal treatment of customers, and that of the Council of the European Union, which would prefer a principles-based approach without hardline definitions. “The Commission’s proposal is stronger than that of the Council and sets more, clearer and stricter conditions under which services other than Internet access can be offered,” said Inge Graef, a technology law researcher at the University of Leuven in Belgium. Some services, such as Internet connections for cars, require data signals to be sent and received very quickly, without losing packets of data along the way. The Connected Continent package currently covers the topics of net neutrality and mobile roaming. The original draft also included elements to harmonize EU telecom laws, but that was cut by the Council. The Commission made its proposal shortly before one of the closed-doors “trialogue” meetings in which the three governing arms of the EU try to finalize the text of legislation. In meetings taking place over the coming weeks, delegations will give feedback on the Commission’s suggestion. However, consumer advocates already say the Commission’s compromise falls short, because it would be too difficult for national telecommunications regulators to monitor and enforce the rules. “There’s a clear lack of enforcement on this principle which will neuter the provision,” said Raegan MacDonald, the European policy manager for digital rights group Access, which is partly funded by large online technology firms such as Microsoft and Google. “We are very much in favor of a principles-based approach, but the principles have to have substance and meaning and they have to be enforceable.” Marietje Schaake, the Dutch liberal member of the European Parliament, who has been one of net neutrality’s loudest proponents, said large companies would be best placed to exploit the loopholes created by ambiguous legislative phrasing. “Start-ups in Europe already face a number of hurdles because we have a fragmented system,” she said. “In the US, where there is a level playing field and net neutrality… it would be a more attractive environment for innovation.”
Large companies best placed to exploit the loopholes in the legislation’s phrasing, said MEP SchaakeThe Commission’s compromise proposals would also limit the circumstances in which an Internet service provider could apply “traffic management” to what flows through their networks. Providers would only be able to alter traffic to preserve technical quality, not for any commercially motivated reasons. The net neutrality debate in Europe is complicated by the fact that many of national governments are still significant shareholders in their telecom industries. The German government, for example, retains a stake in Deutsche Telekom at the same time as its ministers are negotiating new telecoms regulations through the Council. Deutsche Telekom declined to comment on the leaked Commission proposal, but company spokesman Philipp Blank said there was a need for “new innovative services that have higher-quality requirements,” such as “video conferences, tele-medicine, online gaming and connected manufacturing.” “A European regulation should not limit such new services,” he added. “Otherwise Europe would fall further behind the U.S., where the [Federal Communications Commission] has adopted open Internet rules allowing for specialized services.”