A back-room political compromise on net neutrality that is being quiety negotiated in the European Parliament is currently sitting on a knife-edge. It is the only element of the Telecoms Regulation (Connected Continent) that has not been agreed between the different party groups (as previously predicted by Iptegrity). The Committee vote is on Monday.

The big stakes are whether a telco-led agenda for priorised Internet services will be permitted. This agenda will also have serious implications for ordinary telephone services and how television is delivered. In addition, there are issues surrounding Neelie Kroes flagship anti-discrimination clause.

***Update Tuesday 25 February - the vote has been postponed until 10 March.***

The new law that's under scrutiny is formally known as the Regulation on a European single market for electronic communications and to achieve a Connected Continent. This draft law, which will apply throughout the EU on exactly the same terms, contains a provision on the Open Internet and net neutrality.

The responsible committee in the European Parliament is the Industry committee (ITRE) and it will vote on Monday on all the compromises that have been negotiated, including the one on this provision. The rapporteur for the Telecoms Regulation (Connected Continent) is the Spanish MEP, Mrs Pilar del Castillo. She is trying to push the legislation through the Parliament before it breaks up for the Euro-elections and she seems to favour the telecoms industry in terms of her political position. Other MEPs on her committee are trying to amend the compromise so that it more favourable to a net neutrality approach. (See EU Parliament threat to knife new telecoms rules ).

Despite quite a lot of internal wrangling, MEPs are still not willing to stand up properly for an open Internet. Instead they are tweaking a text which they do not themselves understand - the reason being that almost nobody understands it.

What is not well understood is the notion of 'specialised services'. MEPs and lobbyists are trying to write definitions, but give no examples. That is the problem.

The only example that has been given came from a telco lobbyist in a committee hearing. (See EU telecoms rules - smokescreen lifts over telco specialised services ). That example of 'specialised services' was 'voice telephony and IPTV'. As I have previously argued, these are not 'specialised' services, but age-old services dressed up in new clothing. These services have always been regulated for reasons of public interest and the right to freedom of expression, as well as consumer confidence. Permitting them in this way, risks taking them out of all regulation.

That, in my opinion, is the issue that should be looked at. It should be made absolutely clear what 'specialised services' are, with concrete examples and the kind of regulation that these services will need. Legislating without understanding how specialised services will need to be regulated, is asking for trouble, since they in all probability, they will alter the structure of the telecoms market.

It therefore seems out of order that MEPs are trying a write a law without having first obtained and understood the nature of what it is that they are legislating for. In part, the European Commission is to blame for this situation, since it failed to undertake a consultation before drafting the law ( See New telecoms rules: EU Commission had no time to consult ). It also makes more obvious how they may have been sold a lemon by the big telco lobbyists.

The other problem with the Telcoms Regulation (Connected Continent) concerns traffic management and the lack of sanctions for network providers who mis-behave. There is no fine or other penalty that they would risk if they failed to comply with the regulation, as regards discrimination against certain forms of traffic, or prioritising specialised services on a network with too little bandwidth ( See Permission to stream - how new EU telecoms rules violate net neutrality).

It is not clear whether ISPs can be sued for breach of compliance. Hence, they have no incentive to comply.

Moreover, there does not seem to be a provision for complainants who are not customers of the ISP that has failed to comply.

Of course, incorporating a principle of net neutrality will never fly - will it?

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Here is the compromise, drafted by the Telecoms Regulation (Connected Continent) rapporteur, Mrs Pilar del Castillo. The italics reflect recent amendments being agreed. The red highlights text that is of concern:

"internet access service" means a publicly available electronic communications service that provides connectivity to the internet, and thereby connectivity between virtually all end points of the internet, irrespective of the network technologies or terminal equipment used;

"specialised service" means an electronic communications service optimized for specific content, applications or services, or a combination thereof, provided over logically distinct capacity with a view to ensuring enhanced quality and relying on strict admission control with a view to ensuring enhanced quality from end to end and that is not marketed or usable as a substitute for internet access service;

My comment: Telco lobbyists have said that 'specialised services ' will be voice telephony and IPTV. Does this definition describe a voice telephone service? Or an IPTV service? What about one with Spotify and YouTube bundled? What strict admission controls are there when you make a phone call? Spotify does have admission controls, YouTube does not, and neither needs advanced quality. Does it make a difference if it is part of a service bundle (as I have just been offered by Virgin Media in the UK). What impact will this kind of service have? Importantly, how should it be regulated? With many questions like this outstanding, is the European Parliament right to proceed?

Article 23

1. End-users shall be free to access and distribute information and content, run and provide applications and services and use terminals of their choice, irrespective of the end-user's or provider's location or the location, origin or destination of the service, information or content, via their internet access service.

2. Providers of internet access, of electronic communications to the public and providers of content, applications and services shall be free to offer specialised services to end-users. Such services shall only be offered if the network capacity is sufficient to provide them in addition to internet access services and they are not to the material detriment of the availability or quality of internet access services. Providers of internet access to end-users shall not discriminate between specialised services.

My comment: this is the clause that permits specialised services. The final sentence does not make sense. The caveat 'only if sufficient network capacity' has no teeth since there is no sanction against providers who would offer specialised services on lines with insufficient capacity.

3. This Article is without prejudice to Union or national legislation related to the lawfulness of the information, content, application or services transmitted.

My comment: I tend to agree with La Quadrature du Net that this clause could open the door to some kind of private surveillance and the use of deep packet inspection.

5. Within the limits of any contractually agreed data volumes or speeds for internet access services, and subject to the general quality characteristics of the service, providers of internet access services shall not restrict the freedoms provided for in paragraph 1 by blocking, slowing down, altering or degrading specific content, applications or services, or specific classes thereof, except in cases where it is necessary to apply traffic management measures. Traffic management measures shall not be applied in such a way as to discriminate for commercial reasons against services competing with those offered by the provider of internet access. Traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:

a) implement a court order ;

b) preserve the integrity and security of the network, services provided via this network, and the end-users' terminals;

c)prevent the transmission of unsolicited commercial communications to end-users

d) prevent or mitigate the effects of temporary or exceptional network congestion provided that equivalent types of traffic are treated equally.

Without prejudice to Directive 95/46, traffic management measures shall only entail such processing of personal data that is necessary and proportionate to achieve the purposes set out in this paragraph, and shall also be subject to Directive 2002/58, in particular with respect to confidentiality of communications.

Providers of internet access services shall put in place appropriate, clear, open and efficient procedures aimed at addressing complaints alleging breaches of this Article. Such procedures shall be without prejudice to the end-users right to refer the matter to the national regulatory authority.

My comment: this is the clause that bans discrimination, but it also paves the way for the bandwidth cap scam, where free content will be bundled in the cap, and content outside the cap could end up being charged for at high rates.

More analysis from La Quadrature du Net
I am using a slightly later version of Mrs Del Castillo's compromise so there are a couple of differences between them.

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To understand the political context to the Telecoms regulation (Connected Continent) , see my book The Copyright Enforcement Enigma - Internet Politics and the 'Telecoms Package' which discusses the 2009 Telecoms Package and the processing of it by the European Parliament.

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, The EU's net neutrality compromise - what does it really mean? in Iptegrity.com 20 February 2014. Commercial users - please contact me.

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Tags: EU Telecoms Regulation, EU, European Commission, European Parliament, Connected Continent, net neutrality, Pilar del Castillo, ITRE, Telecoms Package, telecoms reform package.

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