Net Neutrality Day of Action: Why Not in Europe?

Axel Spies

German attorney-at-law (Rechtsanwalt)

Dr. Axel Spies is a German attorney (Rechtsanwalt) in Washington, DC, and co-publisher of the German journals Multi-Media-Recht (MMR) and Zeitschrift für Datenschutz (ZD).

Net Neutrality is the concept that everyone should have equal access to all online content (email, video, music, websites) without Internet providers being able to throttle, block, or discriminate against any type of content. It is in jeopardy in the United States. At least this was the impression everyone could get going online on July 12. Public interest groups, website operators, trade associations, entrepreneurs, the ACLU, video creators, social media subscribers, and thousands of consumers posted messages opposing the Federal Communications Commission (FCC) plans to undo its 2015 Internet Order reclassifying broadband providers as common carriers under Title II of the Communications Act. The Day of Action (DOA) participants urged people to tell the FCC and Congress to preserve net neutrality and an open internet. There were 688,848 filings posted at the FCC in the relevant docket by late afternoon, pushing the cumulative total to over 6.7 million. Mark Zuckerberg posted a note of support on his personal Facebook page. Fifty mayors signed a letter to FCC Chairman Ajit Pai. The FCC’s plan to repeal the classification under Title II and the net neutrality rules “poses a significant risk of stifling American innovation and harming local economies across the country,” the letter states.

Europe Has Its Own Net Neutrality Rules

Why was there no DOA in Europe? The obvious response is that most of the large companies interested in the debate are headquartered in the United States. More generally, in Europe various (formerly state owned) players dominate the national and local broadband access markets. There is generally more willingness to rely on the existing legal tools of competition and telecommunications laws to ensure net neutrality and enforce it against these companies. It doesn’t mean that the Europeans enjoy better broadband access or more choices of providers. In fact, residents and businesses in many rural areas in Europe would be pleased if they had broadband access at all at an affordable price.

But this is only one part of the answer. Europe has its own net neutrality rules and issues. In November 2015, the European Union adopted the Net Neutrality Regulation (2015/2120). The rules were heavily debated by the European institutions over a period of two years and, as adopted, leave loopholes in the legislation which, as critics argue, create a not-so-open internet. The regulation leaves wiggle room for the Internet Access Providers to influence the traffic that goes over their networks and gateways by the following three measures:

• “Specialized services”: providers of certain services that go beyond the overall internet access will have access to special transmission quality if there is network capacity and there will not be an adverse effect on overall internet access. The scope of this exception is left vague but could arguably include critical services such as remote healthcare, driverless cars, and Internet TV. By comparison, the current FCC rules go a step further and prohibit the Internet Access Providers from accepting money from businesses to prioritize their content.

• “Zero-rating”: this practice allows operators not to count the use of certain “preferred” applications or sites toward the data limit of the end-user. Effectively, this could be a form of content prioritization.

• Traffic management measures: these allow the internet service providers (ISPs) to monitor network performance and impose data controls in order to manage the efficient use of the network and optimize overall data transmission, The condition is that any such measures must be transparent, non-discriminatory, and proportionate.

The regulation contains a number of compromises and issues that needed clarification. The Body of European Regulators for Electronic Communications (BEREC) was tasked with developing implementation guidelines to ensure a consistent application of the regulation throughout Europe. The goal is to settle its remaining ambiguities. After a public consultation to which almost half a million citizens responded and demanded strong net neutrality, BEREC adopted its guidelines in August 2016. The fight for net neutrality in Europe did not end there. The National Regulatory Authorities (NRAs) in the various member states of the EU must now enforce the regulation to ensure that all consumers as well as content providers enjoy the benefits of net neutrality.

Europe’s Focus: How to Measure the Traffic

A significant open issue is often overlooked on both sides of the Atlantic: the certification of monitoring systems (software) for detecting possible net neutrality violations and empowering users to find out the actual speed of their internet connection.  In March 2017, the BEREC Net Neutrality Working Group invited stakeholders to present their views on measurement methodology. Measuring internet quality has been for a long time a sector with just a few, mostly outdated and cumbersome software solutions for specialists. On June 7, 2017, BEREC presented a draft document on Net Neutrality Regulatory Assessment Methodology for a public consultation. This BEREC consultation is likely boring for most observers. But it is still crucial—without a reliable measuring tool, many consumers and regulators don’t realize that an Internet connection is slow, throttled, or simply suffers from congestion. An EU-wide consensus on a certified measurement methodology could be harder to find than on net neutrality as a principle. In short, the Europeans want to find out where the problem is.

Net Neutrality: A Political Football in the United States

By contrast, in the United States, net neutrality is less a technical, but a highly charged political issue with various players with a lot of money. The debate is part of the general question how politicized the FCC is. The political debate itself is more than ten years old. The arguments are not new, after a hard-fought battle for the FCC’s Open Internet Order of 2010 and various litigations in court all the way up to the U.S. Supreme Court. Arguably, the EU regulation would likely not have become reality if the U.S. debate on the open internet hadn’t spilled over into Europe. Before the FCC’s open internet rules of 2015 went into effect, the White House intervened heavily in their favor as a tool for promoting small and medium-sized companies. President Obama delivered a video message in October 2014 in their favor. The FCC counted more than 3 million comments in this docket. The opponents of the open internet rules have asserted that the FCC was in search of a solution for a problem that didn’t exist.  Since then various lobbying groups have been very active. For instance, the American Cable Association has backed an open internet that “promotes broadband and edge investment and innovation.” On the Day of Action the Internet Innovation Alliance called for codifying the FCC’s Open Internet Order. The net neutrality debate has thus become a political football in the United States. Large internet content providers on the one hand and powerful carriers and access providers on the other hand are funding and endorsing the campaigns and fanning the flames. Whatever the FCC or Congress may determine, this dispute is probably far from over.