A new EU telecoms law adopted on Tuesday (27 October 2015) should mean lower mobile Internet bills for travellers but threatens also to ride roughshod over net neutrality – or does it? We know there has been a political deal but what does it really mean for policy-makers.

 EU legislators yesterday adopted a new regulation on mobile data roaming and open Internet access. The regulation amends part of the existing telecoms framework, and it is being presented as a huge win for consumers. It means that mobile network operators are not allowed to apply surcharges to the prices for emails and Internet access to users who are travelling abroad, and users should expect to pay considerably less when using data services abroad. The new regulation also purports to address net neutrality, with new powers for regulators to deal with restrictive practices, and this is the element of the law that is proving controversial.

 The regulation was the outcome of a political negotiation between the European Parliament, Council of Ministers and European Commission. It is known that a deal was made. Amendments adopted by the European Parliament, on net neutrality, were dropped, and the final text was drafted by the Council of Ministers based on the priorities of the Member State governments.

 The change to the mobile data pricing rules is straightforward. It supports a clear policy aim, and it enjoys strong political support across all EU member states. The mobile phone industry is less happy about it, as they have enjoyed strong revenues from international travellers who 'roam' across national and international networks, and those revenues are threatened with this new law. But  they had to accept it.

 It is the second part of the Regulation, entitled “open Internet access” that presents a problem for many commentators and citizen advocates.

 It is being presented as protecting net neutrality, but that's not the way it is written. In fact, the new law fails to establish the principle of net neutrality and instead it centres on the regulation of traffic management by network operators. It states what the network operators may not do, but fails to give any positive guiding principle for what they should do. In that regard, this new telecoms regulation has no clear policy aim, and it reflects a state of political uncertainty over the role and the remit of the operators, and how the Internet should be run.

 The regulation prohibits network operators from using traffic management systems to block or throttle Internet traffic, or to offer paid prioritisation to content providers. It says that providers should 'treat all traffic equally, without discrimination, restriction or interference'. Thus far, it does read like a net neutrality law. However, there are a number of exceptions and caveats, and this is where the interpretation becomes problematic.

 A major bone of contention is whether or not zero-rating of Internet content will be permitted. Zero-rating is where an operator permits certain preferred content to be 'free' within the user's bandwidth limits. That preferred content is said to be 'zero rated' meaning that it does not reduce the user's bandwidth allowance.

Zero-rating is controversial, because it is, to all intents and purposes, content prioritisation by another name. The zero-rated content will reflect deals between operators and content providers. Non-zero-rated content will be priced more expensively. This means that users will pay a premium for content of their own choice, from the open Internet. For audio-visual content, like movies, that could work out very expensive for the users.

Zero-rating is on the telecoms operators policy agenda, and statements have been issued from the EU institutions suggesting that it would be permitted under the new regulation, however, this is not at all clear and it may be subject to an interpretation of the text.The claim of guaranteeing net neutrality will only hold true if zero-rating is not permitted.

 Another contentious issue within the new telecoms regulation is the matter of specialised services. Firstly, there is no definition of specialised services, so this is a bit like policy-making in the dark. Secondly, the rules drafted for specialised services appear to have to conflicting interpretations, especially as to whether they would be delivered over the Internet, or separately from it.

 Based on the telecoms industry's political agenda, specialised services mean any services provided over broadband, to serve a specific customer need and for an additional charge. It has been suggested that specialised services would be voice telephony (delivered over an IP network), television (IP-TV), and some kinds of e-health monitoring services, for example, monitoring heart patients at home. These services need dedicated bandwidth.

 An interpretation suggests that the law intends for specialised services to be totally separate from the Internet, and they must also not interfere with open Internet services by, for example, reducing the available bandwidth on a given connection. They must also not compete with, or be offered as an alternative to, an open Internet service. This would appear to preclude operators selling some kind of limited, preferred content services, under the guise of specialised services. But it is not clear.

Both zero-rating and specialised services are ways that the operators hope to earn extra revenue. The concern is that these services will get preference over the open Internet, where users can access any content and services from other publishers and providers. This regulation is supposed to address the possibilities for restrictive or anti-competitive behaviour, where the operators would punish content that is not either their own or not on their preferred list.

 This is really where it begins to come unstuck. The difficulty of having a law that has no clear policy aim, and is not backed up by a positive principle, means that it raises a multitude of complexities. It could guarantee net neutrality but it could also, dependingon the interpretation, ride roughshod all over it?

 One phrase in the law that the industry legal advisers do not like is that traffic management measures 'shall not be based on commercial considerations'. From the industry perspective, this phrase seems to prevent them from running additional revenue-earning services over broadband, and from offering preferred deals. From the citizens' perspective, the question must asked – does it mean they cannot do zero-rating?

 It is  stated in the general guidance to the law, that providers should 'not circumvent' the provisions in the law to safeguard open Internet access. The question then is whether zero-rating is considered circumvention? An interpretation is that zero-rating would not comply with the spirit of the law.

 Another phrase that is striking is 'such measures shall not monitor specific content'. Based on a knowledge of how traffic management systems work, I would suggest this will preclude them from doing almost anything other than being a neutral deliverer of content. If I am correct, almost anything else will require some form of filtering and deep packet inspection system and that would not comply with the 'no monitoring' requirement. This raises technical issues that the regulator will need to look into.

 With such ambiguous drafting, this law obfuscates the notion of net neutrality and puts the onus on the users to report bad bahaviour by network operators.

 It will be up to the telecoms regulators to monitor operator behaviour and enforce the law. . The regulators do have new powers to ask for information from the network operatorsand on their traffic management practices. That is a positive step forward. The regulators will have the task of interpreting when 'the end users service is materially reduced in practice'. Member states have the possibility to impose new penalities on the operators and those penalties should be 'effective, proportionate and dissuasive'. In this context, one would expect that means fines reflecting a significant percentage of the operator's revenue.

 However, the underlying issue when it comes to any discussion of access to content is human rights and freedom of expression. The law requires compliance with the EU legal framework, and so it does require member state governments to ensure that whatever operators do, they support the right to freedom of expression. It is a matter of interpretation, but for my two pennies' worth, I would suggest that zero-rating of content, irrespective of whether the law technically allows it, would fall foul of that requirement, because it will inevitably result in content being restricted.

 The net neutrality principle was dropped for political reasons in order to get agreement between the different Member States in the Council of Ministers. The text has been written in order that Member States could present their own interpretation of it. Unfortunately, it will only lead to more problems for Internet users and innovators as they struggle with content restrictions imposed by operators. That cannot be good.

If  you like this article then you might like my forthcoming new book The Closing of the Net  - click here for more info.

You may also like my current books The Copyright Enforcement Enigma: Internet politics and the Telecoms Package ( discussion of the  2009 Telecoms Package and copyright) and  A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms  on copyright industry lobbying.  

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 This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015, EU drops net neutrality principle  – will it mean content restrictions?     in Iptegrity.com,  29 October 2015 . Commercial users - please contact me.

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