It’s a reprise of the Telecoms Package from 2009. It drips and gushes controversial measures that will drive stakes through the entire telecoms infrastructure – not just net neutrality. And it seems the Commission is suffering a severe dose of memory loss.
According to a leaked draft of new legislation, the European Comission is planning to make sweeping changes to the Telecoms Framework that will, inter alia, impact on the Internet. This is the draft Regulation ‘laying down measures to complete the European single market for electronic communications and to achieve a Connected Continent”. It was leaked at the beginning of the month by the European Digital Rights group (EDRi) and, despite the innocuous sounding title, it pushes open a Pandora’s box of controversies. It’s a real horror.
The draft Telecoms Regulation leaked by EDRi comprises a bundle of measures that update and amend the 2009 Telecoms Package. It cuts a swathe through the 2009 Package, amending provisions as diverse as spectrum, competition, access, user contracts, regulatory powers, traffic management and quality of service. In addition, it rolls in other legislation such as the Roaming Regulation and wholesale contracts. Hence, it has a very broad scope and its impact needs to be carefully assessed.
Some parts of the text reprise the language from the 2009 Telecoms Package, and it is clear that they are amending specific provisions from the 2009 directives.
The Telecoms Package took two years to be adopted by the European Parliament and was highly controversial – not just because of the copyright amendments, but on a number of telecoms issues too, including net neutrality which became quite a hot debate during the Second Reading.
Buried in the text of the leaked Regulation are provisions that will give the European Commission wide ranging powers to regulate telecoms networks and the Internet. This is where the real concerns arise and where the Regulation deserves close scrutiny.
An objective of the Regulation is to facitilitate cross-border service provision, so that services to be supplied in one Member State can be purchased in another. That is what ithe Commission means by ‘completeing the single market’. The Commission's vision will significantly alter the structure of the European telecoms market, certainly at the level of infrastructure provision. It will be imposed on all Member States, because that is the nature of a 'Regulation' as opposed to a 'Directive'.
The Regulation contains a whole raft of new rules intended to make this single telecoms services market happen. It introduces a new concept that it calls ‘Assured Service Quality’ for wholesaling of network connectivity, and a ‘virtual broadband access product’.
A number of powers will be delegated to the Commission. These include the oversight of traffic management and quality of service requirements, changes to the authorisation of networks, and enforcing competition provisions. The Commission could have the say so over national regulators under certain circumstances.
In this respect, the Commission is suffering severe amnesia. It lost this battle in 2009, when the Member States made it clear that they did not want the Commission to have any power over telecoms regulation. That is why the Council forced it to agree to a very weak BEREC, leaving the real regulatory power to the national authorities.
Overall, the leaked Telecoms Regulation will need careful unpicking. On the one hand, it would seem that the Commission wants to have another go at dealing with the large monopolistic network operators such as Deutsche Telekom and Telefonica, to make up for where it failed in 2009. But on the other hand, it would seem that the Commission has done a deal with them.
The text of the leaked Regulation contains a provision that hits at the very structure of the Internet and would seem to attack net neutrality, whilst meeting the demands of certain industry stakeholders. These proposals are complicated when placed in the full context of the changes in the Regulation, and I’d prefer to address the topic of net neutrality separately.
I hope to be able to write more on this at a later date. It’s enough to say for the moment that I don’t think the Commission’s idea of net neutrality is the same as that of the rest of the world.
However, in a strange twist of irony that could be good news for those who want to protect a neutral and open Internet, I don’t see this leaked Telecoms Regulation gaining much traction anywhere outside the Commission. Perhaps that is why someone let it leak.
In the meantime, any readers wanting to remind themselves about the Telecoms Package may like to pick one of the last few copies of my book: The Copyright Enforcement Enigma (Internet politics and the Telecoms Package).
The reviews say it’s a page-turner, so maybe it’s not so bad for holiday reading.
If any readers are working on this horror, I am happy to hear from you.
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, 2013, EU Midsummer Horror: leaked draft of Telecoms Regulation, 25 July 2013. Commercial users - please contact me.