Ref. Ares(2015)3080298 - 22/07/2015
Ref. Ares(2015)4821965 - 04/11/2015
Proposed Amendments to the Open Internet Chapter of the EU
Telecommunications Single Market Regulation The Center for Democracy & Technology (CDT) offers the following proposed revisions
to the open Internet chapter of the proposed European Telecommunications Single
Market Regulation.
We have from the outset supported enshrining the principle of non-discrimination of
traffic in legislation, both in Europe and in the US. In May 2013, we set out our
recommendations for European net neutrality policy, and we have since commented at
various stages of the TSM Regulation process.
We make the following suggestions in the hope that they will help the negotiating parties
find solutions that will provide meaningful open Internet protections. They do not reflect
CDT’s view of an “ideal” open Internet regulation, nor do they represent a
comprehensive proposal on all differences between the Commission, Parliament, and
Council texts. Instead, they address three important issues that have come up repeatedly
in conversations with representatives of the European institutions. These are: 1) the
relationship between Internet access service and
managed or
enterprise services, 2) the
relationship between ‘Internet access service’ and ‘specialised services’, and 3) the
relationship between non-discriminatory treatment of Internet traffic and reasonable
network management.
1. The definition of Internet Access Service
CDT proposes a modified definition of Internet access services to clarify that such
services do not include business-to-business or machine-to-machine services that rely on
access to the same infrastructure as Internet access service. Accordingly, CDT proposes
incorporating the “mass-market, retail” definition that appears in the Federal
Communications Commission’s recently adopted open Internet regulation.1
CDT also proposes to remove the definition of “net neutrality” from the definition of
Internet access service. This is not due to a substantive disagreement with the
Parliament’s definition of the term. Indeed, CDT believes the term accurately and
concisely defines the concept. However, incorporating that term into the definition of
Internet access service leads to ambiguity with respect to the consequences that flow
from departure from open Internet obligations that apply to Internet access service. One
could argue that the provider of an electronic communications service to the public that
provides access to the Internet but fails to adhere to basic non-discrimination
requirements is not in fact providing an “Internet access service” and therefore need not
comply with the regulation’s open Internet obligations placed on that service. Removing
1
See Protecting and Promoting an Open Internet, Appendix A, Section 8.2(a) (2015).
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“net neutrality” from the definition of “Internet access service” avoids this potential
loophole. Accordingly, CDT proposes the following definition:
“Internet access service” means a publicly available
mass-market, retail electronic
communications service that provides access to the Internet, and thereby connectivity
to substantially all end points of the Internet, irrespective of the network technology
and terminal equipment used;
2. Specialised Services
CDT has long advocated for a definition of specialised services to ensure that such
services cannot be used to offer the equivalent of an Internet access service while evading
the requirements that an open Internet regulation would place on that service. CDT
recognises the difficulty in crafting a definition that gives sufficient clarity and flexibility
to all actors in the Internet ecosystem to offer new, innovative services that rely on the
same infrastructure as Internet access service but perform a specific, limited function that
is distinct from Internet access.
We understand Council’s reluctance to include a definition, but we believe that a
workable definition of specialised services is possible and that the Parliament text
provides a good basis for such a definition. Some parties have expressed concerns that
certain qualifications in that definition may prove unworkable in practice. Thus, CDT
proposes the following modified definition:
“Specialised service” means an electronic communications service optimised and
used to send or receive data to and from a limited number of parties or endpoints
specific content, applications or services, or a combination thereof, which requires
enhanced quality of service from end to end and that is not intended, marketed, or
used, either individually or together with other specialized services, as a substitute
for Internet access service.
Regardless of whether the regulation defines specialised services, it must clarify that
services other than Internet access service that rely on the same infrastructure are not
offered in a way that harms Internet access service. The proposed texts seek to
accomplish this goal by ensuring that sufficient capacity is reserved for Internet access
service and, in the case of the Parliament text, by banning discrimination between
functionally equivalent services. While CDT agrees with Parliament that a meaningful
open Internet regulation should not permit discrimination between functionally
equivalent services, this issue is more properly addressed in the provision related to equal
treatment of traffic than in the provision on specialised services.
CDT is concerned that the Council text’s inclusion of “providers of content, applications,
and services” among end-users to whom the provider of an electronic communications
may offer specialized services creates uncertainty with respect to an Internet access
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service “customers”. Particularly if Internet access service is defined as a mass-market,
consumer-facing service, this ambiguity is unnecessary and possibly harmful because it
could make all providers of content, applications, or services unwilling customers of a
provider of electronic communication services with whom they otherwise have no
business relationship. To avoid the problems inherent in such an approach, CDT
proposes the following compromise between the Parliament and Council texts:
Providers of Internet access, of electronic communications to the public and
providers of content, applications and services shall be free to offer specialised
services to end-users. In providing those services, providers of electronic
communications to the public, including providers of Internet access services,
shall ensure that sufficient network capacity is available so that the availability
and quality of Internet access services for other end-users are not impaired.
If the term “specialised services” is not defined in the regulation, the article establishing
reasonable limits on the provision of ‘services other than Internet access services’ should
clarify the distinctions between those services and Internet acccess service. CDT
proposes the following provision, which captures those distinctions. In either case, CDT
recommends deleting “in a material manner” from the prohibition on impairment of
Internet access service, as this creates unnecessary uncertainy on the permissible impact a
specialised service may have on Internet access service:
Providers of Internet access, of electronic communications to the public and providers
of content, applications and services shall be free to offer to end users a service other
than Internet access services, which requires a specific level of quality and is not
intended, offered, or widely used as a substitute for Internet access service. In
providing those services, providers of electronic communications to the public,
including providers of Internet access services, shall ensure that sufficient network
capacity is available so that the availability and quality of Internet access services for
other end-users are not impaired.
3. Equal treatment of traffic and traffic management measures
CDT strongly prefers the Parliament’s formulation of the prohibition on unreasonably
discriminatory treatment of traffic by Internet access service providers in Article 23(5).
Application agnosticism is a core component of a meaningful open Internet regulation
and merely requiring equal treatment of equal “types” of traffic is insufficient to achieve
that goal. The Council has expressed its view that discrimination between different types
of traffic is necessary to account for certain sensitivities of different types of traffic to
effects of congestion such as latency or packet loss. CDT believes that it is possible to
address these concerns without sacrificing the principle of application agnosticism
through an expansion of the legitimate traffic management measures under Article 23(5).
CDT also believes that it is essential to clarify that traffic management measures that
deviate from a principle of non-discrimination should be technical in nature and not
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intended to achieve an unrelated business purposes. Thus, CDT proposes the following
modification:
Subject to this paragraph, providers of Internet access services shall treat all
traffic equally when providing Internet access services.
Providers of Internet access services may implement technical traffic management
measures. Such measures shall be transparent, non-discriminatory, proportionate
and shall not constitute anti-competitive behaviour. When implementing these
measures, providers of Internet access services shall not block, slow down, alter,
degrade or discriminate against specific content, applications or services except as
necessary, and only for as long as necessary, to:
...
(c) prevent pending network congestion, mitigate the effects of exceptional or
temporary network congestion, or achieve a similar legitimate network
management purpose,2 provided that equivalent types of traffic are treated
equally;
2 This alteration draws from the definition of “reasonable network management” in
the Federal Communications Commission’s open internet regulation.
See Protecting
and Promoting an Open Internet, Appendix A (pp. 283-‐290), Section 8.2(f) (2015).
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