End user perspective: BEREC Guidelines on Transparency in the scope of Net Neutrality

The previous blog post referred to the scope and structure of the transparency guidelines approved for publication by the Body of European Regulators for Electronic Communications (BEREC):

BEREC Guidelines on Transparency in the scope of Net Neutrality: Best practices and recommended approaches BoR (11) 67 (December 2011; 69 pages)

Chapter II promised to deal with requirements for a net neutrality transparency policy and states, as a general principle, that the end users’ perspective is paramount. The guidelines discuss how to best adapt a transparency policy to net neutrality-related issues, in particular by taking into account different types of end users and usages.


End user perspective

In Chapter II the guidelines discuss major requirements for a net neutrality transparency policy, identifying a set of criteria (page 14):

A fully effective transparency policy (which can be composed of various approaches and measures) should aim at satisfying all of the following characteristics:

- Accessibility
- Understandability
- Meaningfulness
- Comparability
- Accuracy

These criteria are then explained.


Horse's mouth or third party?

The guidelines discuss two approaches to providing end users with information. The direct approach means that the Internet Service Provider offers the user information directly. This route is compulsory.

The complementary, indirect approach means that third parties – such as technical experts in the Internet community, price comparison sites , content providers or NRAs - provide information.

The NRAs have to devise the obligations of the service providers in a proportionate manner, bearing in mind the costs of regulation. Proportionality is discussed on pages 19-20.


Offer and limits

Discussing various aspects of transparency, the guidelines conclude (page 24):

Finding: for net neutrality transparency, information is needed on both the general scope of the offer and on the limitations (general and specific) of the offer.

Traffic management

Chapter II ends with the following finding (page 26):

Finding: Common terms of references about aspects of the Internet access service, including where some agreement can be reached on traffic management measures considered reasonable, can help to make the transparent information to end users simpler, and therefore can make a transparency policy more effective.

Ralf Grahn

Scope and structure: BEREC Guidelines on Transparency in the scope of Net Neutrality

The Body of European Regulators for Electronic Communications (BEREC) approved the transparency guidelines for publication:

BEREC Guidelines on Transparency in the scope of Net Neutrality: Best practices and recommended approaches BoR (11) 67 (December 2011; 69 pages)


Executive summary

The Executive summary on pages 3 to 5 offers a short introduction to the thinking of the Board of Regulators (BoR).

The guidelines stress net neutrality as a key pre-condition to the end users’ ability to choose the quality of the service that best fits their needs, but transparency alone is probably insufficient to achieve net neutrality.

At this stage, the guidelines seem to promise a discussion about various approaches to a number of issues, without clear-cut rules to apply.


Scope

The guidelines discuss transparency from three angles (pages 6-7):

- the types of information that different groups of end users (consumers, business customers at a retail level - see section 1 for a more precise description of the beneficiaries) and institutions need in order to promote the ability to make informed choices regarding the quality of the Internet access services;

- the best means of conveying this information to end users;

- possible ways for end users to monitor the features of their services, and for NRAs to verify operators’ information, and the related requirements.

Related, but separate issues under investigation are (page 7):

Other BEREC projects are closely linked to this work, namely projects on “Competition issues related to Net Neutrality” and “Net Neutrality and Quality of Service”.

Structure

The presentation of the structure of the paper offers an overview to prospective readers (page 7):

Chapter I focuses on the role of transparency with regard to net neutrality, explaining why it is important, but is not sufficient on its own to address the “net freedoms” objective (nor other concerns expressed in the net neutrality debate). In addition, we give an overview of the legal context and touch on the situation within EU Member States.

Chapter II deals with requirements for a net neutrality transparency policy and states, as a general principle, that the end users’ perspective is paramount. We discuss how to best adapt a transparency policy to net neutrality-related issues, in particular by taking into account different types of end users and usages.

Chapter III talks about the contents of a net neutrality transparency policy, including the most appropriate data to be used, and provides practical examples and case studies.

Chapter IV explores different ways to ensure transparency, talking about the way information is transmitted and discusses mechanisms for monitoring transparency.

Chapter V details the possible roles of the various institutions involved, in particular through case studies, and draws some general conclusions of the report.

Regulatory context

On the pages 10-13 the guidelines present the main EU provisions relating to transparency in the revised eCommunications framework and the role of different players (MS = Member State, NRA = National Regulatory Authority, ISP = Internet Service Provider):

The new EU Regulatory Framework for Electronic Communications was required to be transposed by Member States by 25 May 2011. It brought important changes to the 2002 Regulatory Framework and also tackled the question of net neutrality by imposing on MS, NRAs and ISPs several obligations related to traffic management techniques.

Ralf Grahn

EESC on open internet and net neutrality in EU

On 26 October 2011 the advisory body, the European Economic and Social Committee (EESC), adopted an opinion on the communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions – The open internet and net neutrality in Europe COM(2011) 222 final.

Differing from the EU institutions (Commission, later Parliament and Council), the EESC was prepared to advance more decisively and rapidly, recommending that the principles of an open internet and net neutrality should be formally enshrined in EU law as soon as possible.

According to the EESC, the definition of the principles should contain at least the following elements:

i. Freedom and quality of Internet access

The European Commission should agree a common EU standard on "minimum quality of service" according to the principles of general interest, and should ensure that there is effective monitoring of its application.

ii. Non-discrimination between Internet traffic streams

As a general rule, no differentiation be made between the way in which each individual data stream is treated, whether according to the type of content, the service, application, device or the address of the streams origin or destination. This applies to all points along the network, including interconnection points.

There may be exceptions to this principle, provided they comply with the guidelines set out in proposed recommendation no. iii.

iii. Supervising Internet traffic management mechanisms

Marking exceptions to the principles stated in proposals nos. i and ii, and to limit any possible deviations from these, when ISPs do employ traffic management mechanisms for ensuring the quality of access to the Internet, that they comply with the general principles of relevance, proportionality, efficiency, non discrimination between parties and transparency.

iv. Managed services

To maintain the capacity of all players' to innovate, electronic communications operators must be able to market "managed services" alongside Internet access, , provided that the managed service does not degrade the quality of Internet access below a certain satisfactory level, and that vendors act in accordance with existing competition laws and sector-specific regulation.

v. Increased transparency with respect to end users and a defined set of standardised information

There should be clear, precise and relevant information on the services and applications that can be accessed through ISPs: their quality of service, their possible limitations, and any traffic management practices. The EC should guarantee transparency for consumers, including clear information on terms and conditions, the right to use any lawful application and the means of switching providers. The EC should promote more dialogue and effective co-regulatory mechanisms between industry and the national regulators, under the auspices of the EC, in order to agree on EU-wide transparency principles and a set of standardised information.

Ralf Grahn

BEREC consultation on draft Guidelines on Net Neutrality and Transparency

At the political level the European Parliament, the EU Council and the Commission (Digital Agenda, Digital Single Market) have all been active on net neutrality issues recently. Closer to the ”factory floor”, the Body of European Regulators for Electronic Communications (BEREC) tries to find common ground among some 35 national eCommunications regulators, aspect by aspect.


Draft guidelines

This autumn the Body of European Regulators for Electronic Communications (BEREC) published:

Draft BEREC Guidelines on Net Neutrality and Transparency: Best practices and recommended approaches BoR (11) 44 (October 2011; 64 pages)


Transparency and net neutrality consultation

BEREC launched a public consultation on 3 October 2011 (the announcement provided informationa about related net neutrality issues, but did not contain the end date of the consultation). The deadline, 2 November 2011, did appear on the News page.

Stakeholders, including individuals, delivered 77 contributions, available on the consultations page.


Board of Regulators

The Board of Regulators (BoR) 8-9 December 2011 gave its broad support to the documents submitted for approval. The BoR approved the Guidelines on transparency and the report from the public consultation for publication. The two documents:

Draft report on the contributions received during the public consultation on the draft Guidelines on transparency as a tool to achieve net neutrality BoR (11) 66

Revised draft Guidelines on transparency in the scope of net neutrality: best practices and recommended approaches BoR (11) 67


Consultation report

In other words, the report about the public consultation has been published:

BEREC report on the public consultation on the draft BEREC Guidelines on Transparency in the scope of Net Neutrality BoR (11) 66 (December 2011; 15 pages)

With a variety of respondents from different backgrounds, the contributions contain a number of approaches and opinions on the best manner to proceed regarding many issues.

Thus, the consultation report mainly provides a general summary of various opinions, without delving into specific contributions. Recommended reading for people interested in net neutrality issues.

One outcome is worth mentioning in order to link the draft guidelines with the final version (page 15):

Since the received general comments on net neutrality were very numerous and extensive, it was decided in particular to change the title of the document to “BEREC Guidelines on Transparency in the scope of Net Neutrality: Best practices and recommended approaches”, to better reflect the intended scope of the guidelines and avoid any further confusion in this respect.

Approved guidelines

The guidelines approved for publication by the BEREC Board of Regulators (BoR):

BEREC Guidelines on Transparency in the scope of Net Neutrality: Best practices and recommended approaches BoR (11) 67 (December 2011; 69 pages)



Ralf Grahn

EU telecommunications: Public consultation on net neutrality (2010)

From the Digital Agenda for Europe communication 26.8.2010 COM(2010) 245 final/2, our next step regarding the open and neutral nature of the internet takes us to the public consultation.


Public consultation

The Commission launched the promised public consultation on net neutrality 30 June 2010 (press release IP/10/860, available in 22 languages). The Commission wanted to know more about potential problems linked with certain forms of traffic management and whether the new telecom rules are sufficient to tackle them; technical and economic aspects; quality of service considerations; and whether net freedoms may be affected.

The Commission web page about the public consultation on the open internet and and net neutrality offers i.a. the consultation questionnaire, the responses and a summary, as well as video recordings from a seminar (”summit”) which discussed the issues in November 2010.

The Commission's questionnaire (12 pages) offers a presentation of the issues and indications of what the executive wanted respondents to comment on, but the focus was on (page 2):

This questionnaire therefore focuses principally on the behaviour of operators, and in particular how they may manage traffic flowing over their networks (through a set of practices commonly referred to as 'network management' or 'traffic management'), in order to see how this behaviour might impact on the 'net freedoms' of citizens (i.e. their 'ability to access and distribute information or run applications and services of their choice') [reference in footnote 1: This is a regulatory policy objective enshrined in Article 8 of the amended Framework Directive.]

This consultation invites views on how best to preserve the open and neutral character of the internet, given the will of the European Institutions to enshrine this goal as a policy objective and regulatory principle to be promoted by national regulatory authorities, and to consider whether further public policy responses are needed.

For your convenience: Annex I on page 10 contains the Commission's 2009 declaration on net neutrality (also published in the Official Journal).


Responses

The consultation ended 30 September 2010, and on 9 November the Commission informed about the 318 responses through a press release (IP/10/1482, available in 22 languages), with main findings.

A summary report on the responses offers more detail (6 pages). The EU telecoms framework had still to be tested on the ground and various concerns were expressed with regard to the future, but the main findings indicated no need for new legislation, although further guidance might be welcome.

The responses of individual stakeholders can be found here.



Ralf Grahn

EU Digital Agenda: Open internet and net neutrality background

I mentioned the EU TTE Council (transport, telecommunications and energy) 12 and 13 December 2011 on my blogs in Finnish, Swedish (here and here) and English. The TTE Council adopted conclusions which on five pages establish the open internet and net neutrality as a policy objective in Europe, while balancing between contradictory claims and interests.

Here I am going to take a web log approach on my blogs, recording the steps from the Digital Agenda.


Digital Agenda for Europe

Let us start upstream, returning to A Digital Agenda for Europe. The original communication was published 19 May 2010, even if the revised version is dated 26 August 2010. The proposal kicked off one of the seven flagship initiatives of the Europe 2020 strategy for smart, sustainable and inclusive growth.

The communication from the European Commission is available in 22 EU languages; here the English version:

A Digital Agenda for Europe; Brussels, 26.8.2010 COM(2010) 245 final/2


Open internet

The Digital Agenda communication offered this introduction to the openness of the internet (page 20-21), with a few indications about the occurring questions:

2.4.3. Open and neutral internet

The Commission will also monitor closely the implementation of the new legislative provisions on the open and neutral character of the internet, which safeguard users' rights to access and distribute information online and ensure transparency about traffic management [Footnote 27 reference to: Article 8(4)(g) of the Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services; Articles 20(1)(b) and 21(3)(c) and (d) of the Universal Service Directive]. The Commission will launch a public consultation before summer 2010 as part of its more general commitment to report by the end of the year, in the light of market and technological developments, on whether additional guidance is required, in order to secure the basic objectives of freedom of expression, transparency, the need for investment in efficient and open networks, fair competition and openness to innovative business models.

Net neutrality

Wikipedia offers a long introduction to the controversial topic Network neutrality. The article is general in scope, but most of the contents deal with developments and opinion in the United States. However, it discusses the legal situation in the European Union and a few member states (with some need for editing and updating).



Ralf Grahn

Open internet and net neutrality in EU

The TTE Council of the European Union met to deal with transport and telecommunications issues:

3134th Council meeting Transport, Telecommunications and Energy; Brussels, 12 and 13 December 2011 (document 18416/11; 27 pages)

The general TTE conclusions offer an overview of the Council's response to the open internet and net neutrality, issued in relation to the Digital Agenda (pages 19-20):

Open internet and net neutrality

The Council adopted conclusions on the open internet and net neutrality in Europe (17904/11).

These conclusions were drawn up on the basis of the Commission communication on the subject published in April 2011 (9350/11). This communication seeks to fulfil the Commission commitment to preserve "the open and neutral character of the internet, taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities". This commitment was made in its declaration on net neutrality when the 2009 telecoms package was concluded (OJ C 308, 18.12.2009, p.2).

In the conclusions the Council underlines, inter alia, the need to preserve the open and neutral character of the internet and consider net neutrality as a policy objective. It welcomes the Commission's intention to assess the need, based on investigations by the Body of European Regulators for Electronic Communications' (BEREC), for more stringent measures and to publish additional guidance on net neutrality if necessary. In addition, it welcomes the Commission's commitments to monitor the implementation of the EU regulatory framework for electronic communications and services and to issue a code of existing EU online rights by 2012.

The Commission is invited, inter alia, to assess, jointly with BEREC, the discrepancy between advertised and actual delivery speeds occurring in member states, and report to the Council and the Parliament on the situation thereof by 2012. Furthermore, the Commission is invited to provide additional information on the best practices in traffic management and on how to respond to the requirements of global service providers concerning quality and pricing of services.

Open internet and net neutrality

The general conclusions refer and link to the specific conclusions prepared by Coreper and dated 1 December 2011:

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions - "The open internet and net neutrality in Europe" - Adoption of Council conclusions (document 17904/11, available in the other EU languages as well; 9 pages)

If you want to be on the safe side, you can compare with the text distributed to the press after TTE adoption, at this point in English and French.


COM(2011) 222

There is a link to the communication from the Commission (Council document 9350/11), but through Eur-Lex we can access COM(2011) 222 in 22 languges and three document formats. Here to the English version (pdf):

The open internet and net neutrality in Europe; Brussels, 19.4.2011 COM(2011) 222 final (10 pages)



Ralf Grahn

Internet and IPR in EP hearings of EU Commissioners: Neelie Kroes

La Quadrature du Net has been active on many fronts, submitting replies to Commission consultations on copyright and the coming EU 2020 strategy as well as distributing questions ahead of the European Parliament’s hearings with various candidate-Commissioners responsible for various issues related to the Internet. There is a press release following up the hearing with Neelie Kroes: Commissioner Kroes commits herself to Net neutrality (15 January 2010).




Europaeum presents the context for the hearing of Neelie Kroes, designated for the European Digital Agenda (in German): Neelie Kroes muss in die Verlängerung, und wir leider draußen bleiben (15 January 2010).



Europaeum linked to Netzpolitik.org where Simon Columbus reported on Kroes’ statements in favour of net neutrality as well as European fundamental rights in the ACTA negotiations, but noted that she was quite cautious on copyright: Neelie Kroes für Netzneutralität, muss aber nachsitzen (15 January 2010).



Swedish blogger Henrik Alexandersson offers a few personal reflections on the hearing of Neelie Kroes, as well as links to EurActiv and Swedish media: Mer om Kroes… (15 January 2010).



Earlier Alexandersson had offered his impressions of the new Commission and the web, with remarks on Neelie Kroes’ replies on ACTA, net neutrality and copyright: Den nya kommissionen och nätet (14 January 2010).




The press service of the European Parliament offers a Summary of the hearing of Neelie Kroes – Digital Agenda (14 January 2010).




Ralf Grahn





P.S. On Stanley’s blog, Stanley Crossick writes expertly on European issues and the growing importance of the EU’s relations with China. Stanley’s blog is one of the more than 500 great euroblogs on steadily growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance and law.