Italy’s development minister Mr. Giacomelli recently stated that Italy will utilize its EU term of presidency in office (expiring next December) in order to see finalized and approved the “EU Connected Continent” telecoms reform package. “Our priority is to find a solution within the end of this year” the Minister said in a loud clear voice, hinting to the intent to meet the objective within Italy’s term.
Yet his lateral thinking was occupied in the meanwhile in eliminating from the packet the most controversial elements of the reform in order to do so, one of which is unfortunately Net neutrality. Net neutrality could thus not find its way through the regulatory jungle exercise this year, due also to the side repercussions that such reform could trigger on the other side of the Atlantic and relevant debates, not to say of the general “internet governance” topic still to be clarified at international level.
For once, we would hope that diplomacy could well leave the way to the way to decision making on Net neutrality. A reform on the topic could well provide a booster for investments and regulatory certainty, which is all operators in the field want.
The principle of net neutrality is ripe, and the relationship between net neutrality and traffic management is quite mature, being lengthily discussed also by the national regulatory authorities (NRAs) both in Europe and North America. In Europe, different NRAs have issued clear responses to the public consultations lunched by the European Commission on ‘the open internet and net neutrality in Europe’, following also Commissioner Neelie Kroes thoughts according to which telecoms regulatory framework should provide the conditions for both network and service competition, allowing consumers to be put in a condition to be effectively informed about traffic management practices and be able to easily switch to alternative operators if they are not satisfied.
It is clear to all that in line of principle, network and service operators and content providers should be allowed to explore innovative business models, leading to a more efficient use of the networks and creating new business opportunities at different levels on the Internet value chain. On its side, BEREC highlighted (“Report on the public consultation on ‘the open internet and net neutrality in Europe”) its only major concerns: avoiding the setting up of unfair practices by operators and discrimination which could evolve in hindering network investments and fostering digital divide between consumers. BEREC agrees on the fundamental bottom line: that traffic management can be legitimate and may be useful in ensuring service quality for the benefit of users, and all transparency obligations could be well respected simply drawing a distinction between best-effort and managed services. In this regard, “best-effort service means that there is no guaranteed level of performance (nor is priority a guarantee for the data to be delivered) without necessarily implying proof of low quality. The general principle is that all traffic demands are accepted – this is fundamentally based on an ‘openness feature’. In cases where the maximum transport capacity is reached, this will, in turn, result in an overall decrease in quality. Managed services are therefore designed to provide guaranteed characteristics (eg, end-to-end quality or security).”
The Italian-EU Minister in term could also make treasure of Agcom’s (Italian NRA) condensed ideas on the point. According to Agcom, end users should be guaranteed information, transparency and awareness of service characteristics, and easy switching and acceptable quality for best-effort Internet access should be ensured. In Resolution no. 40/11/Cons, the Italian NRA clarifies also how some particular operative and network transmission issues (already addressed by BEREC) could be solved within the particularities of Italian market. For instance, Agcom clarifies the type guarantees and transparency obligations due to consumers, in order to ensure full knowledge on the reality of data services. Also, competition protection and structural elements which may differentiate network systems and offering of services in the market have been identified, as well as general values associated with net neutrality and the social and political dimension (such as the digital inclusion and EU 2020 coverage targets).
Apparently, the only missing spot of clarity pertains to competition. It is quite still unsure how and to which extent the different forms of management of network traffic may impact the offering of services and the same presence of operators in the market, including the provisions on significant market power (SMP). Aside the envisaging new forms of alternative dispute between operators on net neutrality controversies. Audaces fortuna iuvat, Mr. Giacomelli.