It was with interest then that I read the language of the “final compromise test” of the proposed new regulation on the Connected Continent from the EC. This cover two things principally – (1) it tries to abolish roaming in the EC; and (2) it contains a net-neutrality-like “open internet” obligation. This blog post will discuss only the latter.
Whilst advocates of net neutrality have criticised the regulation for allowing too many get-outs (in respect of “specialised services” I am much more concerned about the potential downsides in terms of restricting competition and the launch of new services. As explained below however there is also one, little commented-upon, aspect of the new regulation which will, I think, be beneficial and should be much-welcomed by consumer advocates.
Currently only two EC members have a net neutrality rule in place – Neherlands and Slovenia. As my earlier posts make clear in both of these countries this operates to prohibit “zero rating” – which is the practice of excluding certain types of content from metered data-usage charges. In practice this has operated to impede new entrants in various OTT markets and make it not easier but more difficult for them to compete. In other words in competitive markets this form of strong net neutrality – outlawing zero-rating – can have the opposite effect for that which proponents claim for it.
On a first reading of the proposed regulation it is not clear whether or not zero-rating will or will not be prohibited. There is certainly some text which could be used to argue that zero-rating is caught, For example Article 3(2) says
Agreements between providers of internet access services and end-users on commercial and technical conditions and characteristics of internet access services such as price, [emphasis added] data volumes or speed, and any commercial practices conducted by providers of internet access services, shall not limit the exercise of the right of end-users set out in paragraph 1.
The inclusion of price as a criteria to judge whether the “open internet” rules have been broken certainly suggests that zero-rating might be caught. This would, I think, and for the reasons already expressed, be a bad result for consumers.
The “right” to an open internet
Somewhat oddly the language (at Article 3) appears to (try to) give consumers a “right to access and distribute information and content, use and provide applications and services and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location…”
This language of rights sits very oddly. It is almost as if the text were trying to create a new right akin to human rights – clearly a very odd concept. As explained in my blogs posts referred-to above (in the context of internet.org) I think it is dangerous to treat net neutrality as if it were a good thing in and of itself – that is plainly not the case where it is used an excuse to prevent the creation of free services which could only benefit the unconnected.
Confirming internet speeds
There is one, little commented-upon, section of this new regulation which I think is a good thing. Article 3 says that ISPs must include in their contract with end users information on the speeds they can actually expect. It goes further to say that regulators should monitor this and that any significant discrepancy between actual and the (now) contractually promised speed will constitute a non-conformity with the contract (and hence could be grounds for terminating and even claiming damages). This rather neatly fixes a common issue with ISP services where actual speeds delivered do not come close to the advertised ones.