The network neutrality debate in the U.S. has moved to the appeal courts as the 2010 FCC Order, which becomes effective on November 20, awaits review.  Meanwhile, two European Union developments could presage more regulatory steps forward. The result is movement away from the European Commission’s wait-and-see communique announced just last April.

It is not yet certain whether there will be an EU carve-out for mobile Internet traffic, similar to the FCC’s reduced treatment for this presumably bandwidth-constricted technology.

On October 7, the European Data Protection Supervisor (EDPS) issued an opinion on network neutrality and protection of privacy.  The decision represents a relatively balanced review of the need for internet service providers (ISPs) to manage traffic and the impulse for “function creep where the initial purposes could easily evolve into commercial or other exploitation of information collected.”  The Opinion recognizes that both the content and the traffic data processed by ISPs are protected by the right of confidentiality of correspondence of the EU Treaty. Use of either requires “free, specific and informed indication of wishes.”

The Opinion concludes that a website can’t require consent to collect personal data from a user as a condition for subscribing “[g]iven that the Internet has become an essential tool both for work and for leisure purposes.”  Thus, websites that condition entry on personal data are not allowed. Moreover, it opines that consent must be obtained from “all users” in a communication. Query whether and how this would apply to a data-mining free email account, where the subscriber has consented but her correspondent has not.

The Opinion recognizes that consent to inspect a customer’s traffic or content data may not always be possible, or necessary, for all monitoring functions. But the Opinion is likely to be cited by those seeking to link privacy rights and personal data to the network neutrality cause; in the US, privacy has not been in the forefront of this debate.

The EDPS defined ISPs to include "the provision of both fixed and mobile access to the Internet." In its earlier communication on network neutrality, the European Commission took no position on whether separate rules should be set for mobile versus fixed service providers. In a draft paper on network neutrality released on October 4, BEREC - the Body of European Regulators for Electronic Communications - first stated that "the principles government traffic management should be the same for mobile and for fixed networks."  Nevertheless, BEREC then said that some special considerations may be appropriate for mobile operators, because they rely on traffic management or fair use policies more often than fixed operators.  "They justify measure against congestion because of several end users often sharing the local radio loop, and there being limited capacity due to spectrum constraints." BEREC is expected to release its final paper in February next year.

On October 20, neutrality advocates in Europe inched their efforts forward when the Industry, Research and Energy Committee (ITRE) of the European Parliament voted to ask the European Commission to come up with more guidance on network neutrality.  This step, too, marks a backing away from last spring’s “wait-and-see” stance.  Among other things, the resolution calls on the European Commission to ensure that ISPs “do not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet.” This language actually goes farther than the FCC’s neutrality rules, which bars only “unreasonable” discrimination.

One reason the EU has lagged the U.S. in net neutrality regulation is that European telcos have generally been required to unbundle their last mile copper plant. Multiple ISPs, in theory anyway, can serve a residence. With ISP competition possible to every residence, a customer can switch if she doesn’t like the ISP’s terms and conditions.

In the U.S., telcos were freed from unbundling in 2005, and cable networks were never generally subject to the requirement. Despite extensive head-to-head broadband competition in most of the country, competition is not universal in all 50 states. U.S. Regulatory proponents note this lack of competition in rejecting a market-based solution to issues of ISP conduct.