By Thomas Lohninger

After she won the vote in ITRE yesterday Pilar del Castillo published this FAQ on the controversial Open Internet provisions of the Telecom Single Market Regulation. We took the liberty of commenting on her answers.

What is the open internet-net neutrality debate about?

The main issue is to ensure that the internet remains open. In other words that users have the “ability to access and distribute information or run applications of their choice” (recital 45 and article 23.1). This is clearly guaranteed through the compromise amendment 4 to the Telecoms Single Market Regulation.

EDRi comment: This is a common misconception. The issue is not a theoretical possibility to gain access to everything, but a practical ability to receive and impart information on equal (“neutral”) terms. This core element of net neutrality is neatly ignored with the text in question.

In addition, compromise amendment 4, for the first time in a European regulation, includes a definition of the net neutrality principle that states that “net neutrality in the open internet means that traffic should be treated equally” (recital 45). It is important to underline that, although the alternative text of compromise amendment 4 has a very similar definition, it excludes the terms “in the open internet” and consequently contradicts the specialised service provisions that follow.

EDRi comment: When drafting a legal text, it is important to be aware of the fact that including a definition does not mean anything, if the concept is not effectively applied elsewhere in the legislative instrument. Sadly, the remainder of the text adopted by the Industry Committee does not apply the definition giving little  impact. A neutral network is a neutral network. Arguing that net neutrality as a concept only has a meaning if it is specified which network (the “open Internet”… as opposed to which other Internet?) is neutral clearly makes no logical sense.

What are the specialised services proposed by the European Commission?

They are services that ensure an enhanced level of technical characteristics. They are provided through special end-to-end connections between users and providers that are logically distinct from other connections. Although enshrining the concept in a regulation is new, specialised services are not, and are currently being offered throughout Europe.

EDRi comment: Real, distinct, non-internet-based specialised services already exist and are not raising problems for net neutrality. Precisely for this reason, the Netherlands and Slovenia have net neutrality laws without defining “specialised services”. Defining specialised services means trying to define current and future business models. This approach brings no obvious benefits and brings about the kind of over-regulation Ms Del Castillo has always (and correctly) argued against. By defining specialised services too broadly, as the Industry Committee has done, there is a risk of ordinary online services being sold as “specialised services”, to the detriment of competition and innovation.

Examples might be High Definition IPTV (there are already 27.2 million customers with IPTV services in the EU), videoconferencing, data-intensive cloud computing or healthcare services like telemedicine (for example by connecting a rural clinic to a large urban hospital, that may require an extremely high-capacity, guaranteed quality of service and secure protection of sensitive data).

Comment: These examples show exactly why a definition is not needed. It is absolutely certain that no national regulatory authority would have found any risk of such distinct services being sold or implemented in a way which would have undermined net neutrality.

Will the current proposal on specialised services be the end of the open internet as we know it?

No, on the contrary. Specialised services already exist; what the provisions in the draft regulation do is to add safeguards (more than the Commission proposal) to the current situation.

EDRi comment: This is an important point, as Ms Del Castillo recognises that, once a definition is adopted, safeguards are needed. However, she does not mention what she believes these risks are, nor does she explain why she thinks that her “safeguards” would minimise these risks.

As an example, the current compromise proposal 4 introduces guarantees that specialised services will not in any way harm the open internet, such as:

  • Specialised services must be clearly identified: they cannot be marketed or widely used as a substitute for public internet access (article 2);

EDRi comment: Taking the two examples provided by Ms Del Castillo, is it possible that someone would use High Definition IP TV as a substitute for public internet access service? Is it possible that a rural clinic using extremely high capacity data links would use that service as “public internet access”? The answer is obviously “no”. So, either the examples are meaningless or the “safeguard” is meaningless.

  • They are not allowed if they slow down or interfere with the internet of other users (article 23.2);

EDRi comment: It is strange that Ms Del Castillo misquotes her own text. It does not refer to “other users”. It says that there should not be an undefined “material detriment” to internet access services. How should users guess what is happening in the provider’s network? How much interference is “material”? What is “material”? Why did she not use the clear words (“slow down or interfere with”) in her amendment that she now uses in her FAQ?

  • A detailed and rigorous procedure for supervising, monitoring and enforcing user rights is introduced (article 30a).

These are important new safeguards that show that specialised services should not be seen to be in opposition to open/public internet services, as they provide a valuable offering to consumers, they are innovative and consequently foster network investment.

EDRi comment: The barriers to national regulators taking rapid actions to address abuses are carried across from the existing telecoms package. Rules are one thing, but implementation is at least as important.

Is there a risk that Internet Service Providers decide that video sites or social networks that today are accessible through the open internet, become specialised services and make end users pay for them?

No, the proposed regulation does not allow any possibility for providers of internet access to disguise internet access as specialised services (article 2).

EDRi comment: This question and answer neatly demonstrates the confusion between services accessed through specialised access services and specialised services. Article 2 of the Commission’s proposal and Ms Castillo’s proposal both define specialied services as access services. It is impossible to define video sites or social networks as specialised services because they are not access services. This makes the question above logically meaningless. The question is… can a “specialised service” be created which would – subsidised by the online monopolies – offer access to services which are functionally identical to existing online services, thereby creating a two-tier internet and undermining competition, innovation and choice? The answer to this question – the real question – is “yes”.

The proposed regulation only permits specialised services to exist if there is also enough capacity for high-quality open internet access and, in addition, internet access providers cannot degrade quality to push citizens or content providers to buy specialised services or to discriminate amongst such services.

EDRi comment: The reference to discriminating “amongst such services” is very misleading. Specialised services are access services offered by the access provider. How or why would an access provider discriminate amongst its own services? This is a perfect example of how the draft regulation’s “prohibitions” of discrimination sound meaningful but actually mean nothing at all.

National authorities will have the power and obligation to enforce this, and to set minimum quality standards for internet access services if necessary. In addition an important role has been given to the Body of European regulators in Electronic Communications (BEREC) to set a coordinated approach for all national regulators across the entire Union.

EDRi comment: It is true that national regulatory authorities (NRAs) can set minimum standards, if problems become urgent. Once a problem starts, the user just needs to wait until the NRA accepts that the problem exists. They then wait until the NRA notifies the Commission “in good time” regarding the planned measures that it intends to take. The NRA will also be required to notify BEREC. The user will then wait, as the NRA waits for the Commission’s views as to whether the planned measures are likely to adversely affect the single market. Finally, after taking “utmost account” of the Commission’s views, the NRA may act, if the measures are not considered by the European Commission to be a risk for the single market, or may be forced to produce new measures that are less likely to impact the single market. Ms Del Castillo is not responsible for this – this was the responsibility of UK Conservative MEP Malcolm Harbour, whose party campaigns against excessive European bureaucracy that is bad for business. Or runs election campaigns on that platform, at least.

Would the possibility of internet service providers negotiating with content providers and offering specialised services with enhanced quality at premium prices not create a two-tier internet?

No, it creates more options for consumers, just as today. Now consumers and businesses alike can choose from a range of deals that provide different speeds, data volumes, coverage and prices. This does not mean that there is a ‘two-tier’ internet today: indeed, consumers will be able to benefit from extra competition and choice. No one would be obliged to buy specialised services which they do not need or want, nor can they be an alternative to the public internet.

EDRi comment: This answer is confusing as it contains several different elements. Firstly, Ms Del Castillo kept the Commission’s definition of specialised services as exclusively access services.
Secondly, her reply suggests that all she is doing is facilitating what is already happening and, even though it is already happening, it will lead to extra competition and choice.
The bottom line is that Ms Del Castillo’s text is very explicit that the ban on discrimination only covers situations that are “within contractually agreed data volumes and speeds”. If a regulation only bans discrimination in certain circumstances, it appears logical that discrimination is permitted in other circumstances.
Discrimination undermines competition, lack of competition undermines choice and increases costs.

In order to foster a strong, truly competitive economy, businesses should be free to develop their own business models; providers of content and services should not be an exception. Why should there be concern if we introduce strong safeguards that guarantee that everyone can have access to the open internet without being blocked or throttled?

EDRi comment: If this is what Ms Del Castillo wants, then can we expect that she will support the revision of Article 23.5, which only bans discrimination in a narrow range of circumstances.

Can internet service providers manage internet traffic? If so, under what circumstances?

Yes, but only in a limited number of cases. Not only are internet service providers able to manage internet traffic in some situations, such as addressing traffic congestion, they must do so in order to ultimately avoid gridlock and total failure should the operator not have planned for such overloads and not manage the traffic according to technical principles. Consequently, in some cases, network management is a way to avoid congestion and the failure of best effort Internet, allowing for all users to obtain a fair and efficient share of common network resources.

Nevertheless, and in order to guarantee that there are no restrictions on internet traffic, the draft compromise amendment 4A prohibits any kind of restriction on internet traffic by internet service providers and allows traffic management in three defined scenarios (and only if reasonable, transparent, non-discriminatory, proportionate, necessary, and only in place as long as it is strictly necessary). These scenarios are the following:
1) to implement a court order;
2) to preserve the integrity and security of the network – in other words to prevent misuse of a network and combat viruses, malware or denial of service attacks, and to avoid the malfunctioning or disruption of internet access;
3) to prevent and mitigate network congestion – but only if congestion occurs temporarily or in exceptional circumstances.

What is the main difference between compromise amendment 4A and 4B of the Telecoms Single Market Regulation?

The main difference between the two alternative compromise amendments lies in the definition of specialised services and, more specifically, on the addition to 4B of the text “its application layer is not functionally identical to services and applications available over the public internet access service”, which adds new very stringent restrictions to the possibility of offering specialised services.

EDRi comment: The purpose of the amendments to this part of the regulation is, or should be, to ensure that definition excludes the possibility of online services being misrepresented as services for which “specialised access” is needed. She again argues that she has added stringent new restrictions, implicitly accepting that the definition is important and needs to be stringent, but yet never once in her FAQ does she identify what these risks are or the specific reasons why she thinks her text is adequate to address them.

More specifically, the above-mentioned proposed addition to the definition of specialised services would add a rule that prevents specialised services being used where the content in question could be transmitted without a specialised service. Consequently compromise amendment 4B would only permit specialised services in cases where it was impossible to deliver content without a specialised service, but not where a content provider chooses to purchase guaranteed technical characteristics of transmission.
Furthermore, from a technical perspective, the proposed addition of compromise amendment 4B appears to be intended to restrict the optimisation that can be provided by a specialised service to the application layer, not taking into account that, in reality, specialised services tend to be differentiated from other services at the network layer. In addition to introducing an inappropriate level of technical complexity into this Regulation, this would constitute an unwarranted limitation on the future development of services on the internet, undermining the very innovation that has characterised the internet to date.

EDRi comment: If the content in question can be transmitted as easily via best effort internet as by a specialised service, then we clearly see the purpose of “specialised service” deals. Their intent is not to allow for new innovative services that foster our economy or consumer choices, their intent to permit telecoms companies to demand payment from online service providers for access to their customers – in the fast lane. Innovation in the online world has happened solely in the best effort internet. No specialised services were needed to invent or allow widespread use of the World Wide Web, Video Streaming, Apps or Video Conferencing. Innovation happens on a level playing field with competition and consumer choice, not in gated special access markets.

The adoption of the definition of specialised services as stated in compromise amendment 4B could therefore lead to very undesirable consequences. In this regard many questions would arise such as: shouldn’t cable TV networks stop offering TV channels through a decoder, in other words outside the open internet, because they are “functionally identical” to services already provided over the internet? Would it be impossible to implement VOLTE (which is the agreed interoperable, compliant with security obligations, standard for voice over LTE) on 4G networks, should we dial the 112 emergency number through Skype?
At the end of the day, specialised services should not be seen to be in opposition to open internet services, as they provide a valuable offering to consumers. In this regard, regulations and definitions should not distort or disallow innovative services that are beneficial for society. Introducing extremely stringent limitations in definitions is an unnecessary limitation to innovation in the provision of services and new business models that may make much sense for users. There is no reason to totally close these innovation paths if strong safeguards and monitoring procedures are in place.

EDRi comment: Ms Del Castillo is failing to answer her own questions here. She has recognised that the definition needs to be stringent, she has therefore recognised that risks exist. She has not specified what she believes to be the risks. She has therefore not explained, in this matter of crucial social and economic significance, why she believes that her approach addresses these risks. Explaining which other approaches do not address the risks that she does not specify is an interesting debating tactic, but hardly constructive in moving this issue forward, for the good of European citizens and businesses.