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EU net neutrality deal miraculously keeps everyone happy

Despite zero-rating omission, text closes loopholes and promises level playing field

Thanks to a 10-hour meeting, it appears that EU negotiators have done the unexpected: created net neutrality rules that keep both digital rights activists and telco operators happy.

Last Tuesday, after three months of toing and froing between member states and the European Parliament, a last-ditch political deal was pushed through on the core text of the so-called Telecoms Package.

However, as expressed by all sides, the devil would be in the detail of the recitals (explanatory guidelines for implementation). On Wednesday, those recitals were published and met with surprising enthusiasm.

Although the phrase “net neutrality” does not actually appear in the text, Estelle Massé of digital rights group Access said that the text of Article 3.3 of the proposal is essentially the definition of net neutrality. Under the proposal, internet service providers would be banned from blocking or throttling internet speeds for certain services for commercial reasons.

“The text seems workable,” said Massé. “Recital 11 on specialised services criteria seems fair. Providers cannot prioritise content, so there won’t be a fast lane and a slow lane, which is what we feared. However, enforcement will be key and because the text is not quite as clear as we would like, there will be a lot of room for interpretation,” she said.

The text acknowledges that “there is demand on the part of content, applications and services providers, as well as on the part of end-users, to be able to provide electronic communication services other than internet access services, for which require specific quality of service levels. In other words, special services for things like healthcare devices or certain machine-to-machine communications services. Under the proposals, providers are “free to offer services which are not internet access services and which are optimised to meet the specific quality requirements of specific content”.

Internet traffic can be managed to deal with “temporary or exceptional congestion”. In the first draft of the text, there was no explanation as to what constitutes temporary or exceptional, but the guidelines published today nail this down more firmly.

Temporary congestion may be caused by physical obstructions, lower indoor coverage, technical failure – such as a service outage due to broken cables or other infrastructure elements – unexpected changes in routing of traffic or “large increases in network traffic due to emergency or other situations beyond the control of the internet access service provider”.

However, if this congestion is recurring regularly it is not something that can be deemed “exceptional”, and the text suggests that investing in expanding network capacity might be economically justified.

The only controversial area that has not been addressed by the new text is the issue of zero-rated services. These are services offered to customers for free, thanks to a deal between the service provider – for example Facebook, Spotify or Netflix – and the telco provider to pay for the service at source.

“There is a big question mark over zero rating, because there is absolutely nothing on it in the text,” said Massé. “Some countries have already banned it, some want to ban it, some don’t and it’s unfortunate that there won’t be one rule for everybody across the EU.”

The current agreement is a political deal only and will have to be approved by the European Parliament. It will almost certainly pass a vote at committee level next Wednesday, but even now the door may be open to amendments ahead of a full plenary vote in autumn. ®

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