Pressure Builds from All Sides Before Vote on Controversial Net Neutrality Provisions

Lobbying on a European Commission telecom reform package ratcheted up a day before Thursday’s European Parliament vote. Although the “connected continent” measure (CD Dec 2 p8) addresses a range of issues such as mobile roaming charges and spectrum allocation, most of the attention has focused on its net neutrality provisions, which have attracted intense lobbying from major telcos, digital rights and consumer activists and EU Digital Agenda Commissioner Neelie Kroes. Everyone seems to want an open Internet, but few agree on what that means, said consultant Innocenzo Genna, who represents non-incumbent telecom and Internet players. The fate of the package was unclear at deadline, but some observers predicted the more net neutrality-friendly provisions might pass.

If adopted, the connected continent regulation will end voice, text and data roaming charges by the end of 2015, ensure more coherent spectrum allocation, boost consumer protection measures and develop innovative communications and telecom tools for business users, Kroes wrote in a Tuesday open letter to members of Parliament (MEP) (http://bit.ly/1gnvPrk). It also laid out the principles of net neutrality in an open Internet; that is, no blocking or throttling, she said.

Kroes said she wants legislative decisions based on facts. The EC proposed “clear and strong protection of full access to the open Internet, a ban on blocking of traffic and ban on discrimination against different services or applications,” she wrote. It’s clear that all participants in the discussion favor the right to access and free and open Internet, she said. But some have tried to portray specialized services “as a serious threat,” which is incorrect, she wrote. Specialized services would only be allowed if they don’t impair the Internet, she said. They must be delivered on “distinct and additional network capacity” and can’t eat into existing capacity and contractually agreed speeds that users pay for, she said.

Specialized services already exist and are unregulated, Kroes said. There’s a strong case for such services because they drive innovation and investment in the digital economy and give consumers tailored offerings, she said. Kroes made her “final case” for a telecom single market during Wednesday’s plenary debate. She said lawmakers had been “bombarded on this issue” from “lobbyists who probably said this was about saving the internet versus destroying it,” her written remarks said. Specialized services must have safeguards but equally they mustn’t be blocked, which is what some of the plenary amendments would do, she said. She urged lawmakers not to hamper networks needed for cloud computing, IPTV and telehealth services that rely on enhanced quality of service.

There are three options on the table, said European Digital Rights (EDRi) Executive Director Joe McNamee. One is the EC proposal (http://bit.ly/1iZkouf), a second is the European Parliament Industry, Research and Energy (ITRE) Committee report by Pilar del Castillo, of the European People’s Party and Spain (http://bit.ly/1pK2COp), and the third is cross-party language proposed by the Socialists & Democrats, Alliance of Liberals and Democrats for Europe, and European United Left and Nordic Green Left (http://bit.ly/1ebBPng). Genna’s blog (http://bit.ly/Odbcai) said a fourth option could be to toss out all or part of the entire package.

'Tiny Majority’

Proponents of the cross-party text “appear to have a tiny majority today,” McNamee told us Wednesday. Genna envisioned three possible scenarios for Thursday’s vote. He gave a 50-50 chance to the possibility that MEPs may want to end their terms with a “nice electoral bang” and so will approve the net neutrality-friendly amendments offered by the cross-party group. That position will then move to the Council of the EU, which will modify it later, he said. Other possibilities are that lawmakers approve the del Castillo report, which Kroes also backs, or that they throw out either the entire connected continent package or just the net neutrality part, Genna said. McNamee dismissed the former, saying the whole measure “can’t be rejected because the MEPs want roaming for the [May 22-25 parliamentary] elections.”

The European Parliament is likely to be a little more pro-net neutrality than the EC, said Hogan Lovells (Paris) communications lawyer Winston Maxwell on a Wednesday webinar on net neutrality within the global market. The Council is “relatively unenthusiastic” about the entire EC proposal because of its spectrum provisions, the upcoming parliamentary elections and the changeover in the EC later this year, he said.

The recent proliferation of harmful agreements under negotiation or concluded between ISPs and telecom operators, such as those reported between Apple and Comcast in the U.S. or SFR and YouTube in France, can be added to the long list of discriminatory ISP practices already identified by European regulators, French citizens’ advocacy group La Quadrature du Net said in a Monday news release. It urged MEPs to back the cross-party amendments that permit specialized services only for applications which it can be argued actually require enhanced quality of services.

Those legislative proposals worry the e-communications sector, said Cable Europe, the European Competitive Telecommunications Association, European Telecommunications Network Operator’s Association and GSMA. They support an open Internet but “a set of misconceptions about our industry, together with a rushed legislative process and a lack of technical analysis, risk transforming the Connected Continent Regulation into an anti-innovation and anti-consumer choice legislation,” they said in an Wednesday joint statement (http://bit.ly/1mKctVw). The parliamentary text “reflects very restrictive views on how the internet should work and how specialized services with enhanced quality could be offered,” the communications providers said. The proposal’s results would include lower quality Internet for all, jeopardizing services such as IPTV and telepresence, and preventing operators from managing their networks efficiently, they said. The legislative text will also cut users’ choices, distort competition between backbone providers and network operators; and create legal uncertainty by putting in place “hyper-prescriptive and complex” rules, the joint letter said.

In an opposing joint statement (http://xrl.us/bqswxg), BEUC-The European Consumer Organisation, EDRi, Openforum europe and others said they're “gravely concerned” about loopholes in the EC and ITRE texts that would allow part of the telecom industry to become gatekeepers that decide what succeeds and what fails online. The cross-party amendments will help maintain a high quality Internet for all and don’t prohibit offerings now provided to broadband users such as IPTV, they said. Strong, ambitious net neutrality rules would stop an “unacceptable shift” toward consumers paying premiums to access specific services such as online video, BEUC said.

McNamee slammed Kroes for pressing MEPs to oppose certain clarifications of the legislation on the ground that this would undermine the fight against child pornography. The EC proposed to give ISPs an open-ended right to block whatever they want if they believe they're “preventing or impeding serious crime,” though those terms weren’t defined, he told us. Three parliamentary committees rejected that text. The child exploitation directive already lets governments block access to webpages containing or disseminating child pornography, subject to transparent procedures and adequate safeguards, McNamee said. Given that, and the fact that the EC considers the directive a success, it’s not clear why Kroes would ask MEPs to allow Internet companies to do whatever they want without the legal safeguards Parliament insisted on in the child exploitation directive, he said. ITRE and the cross-party groups proposed wording to avoid conflict with the existing directive, he said.