Major Loophole Remains in Net Neutrality Resolution

Brussels, October 19th, 2011 — Negotiations on a weak Net neutrality resolution are coming to an end at the EU Parliament, with the vote taking place tomorrow. After much reluctance, the conservative (EPP) group has finally agreed to endorse a call for a timely assessment of further regulation on Net neutrality. However, the text still includes a major loophole allowing operators to implement Internet access restrictions on the pretext of managing congestion.

The negotiations of “compromise amendments” to a Net Neutrality resolution at the EU Parliament have come to a close. La Quadrature du Net publishes its voting recommendations on the proposed amendments¹See voting list here, and detail of amendments here., sent to the members of the Industry (ITRE) committee, ahead of tomorrow’s vote²The vote is scheduled for 10:00 am. See http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+COMPARL+ITRE-OJ-20111020-1+01+DOC+XML+V0//EN&language=EN.

In a last minute move, the conservative (EPP) group finally agreed to endorse an amendment asking the EU Commission to promptly assess the need for “further regulatory measures” on Net neutrality after the body of telecom regulators concludes its forthcoming study³The Body of European Regulators for Electronic Communications’ (BEREC) study on traffic management practices was originally supposed to be released by the end of 2011. Apparently, it has now be postponed to February 2012. on Internet service providers’ traffic management practices (ISPs)⁴In compromise amendment 9, the Parliament asks the Commission “ to assess within six months after the publication of the findings of BEREC’s investigation whether further regulatory measures are needed”. See https://www.laquadrature.net/wiki/Network_Neutrality_resolution_amendments#Compromise_amendment_9_.2B.2B.

However, the resolution still includes a major loophole favouring telecom operators, supported by the conservatives (EPP), namely the ITRE chair, Herbert Reul, and the social-democrats (S&D), represented by Catherine Trautmann. According to the draft, operators may implement access restrictions⁵Access restrictions are described by the broad, undefined wording of “reasonable network management”. in cases of “congestion” of their networks. Such wording allows ISPs to use the excuse of radio spectrum scarcity to create permanent congestion and legitimize widespread violations of Net neutrality in mobile Internet access.

To avoid such deviation from the Net neutrality principle, ISPs should only be allowed to practice discriminatory traffic management in cases of unforeseen congestion, in which case traffic management should be proportionate and time-limited.⁶As we wrote last year in our response to the EU Commission’s consultation on Net neutrality: “When a wireless or land-line network goes through a period of unforeseen congestion (e.g. in the case of equipment failure), network operators are entitled to implement discriminatory traffic management practices in order to ensure to fluidity of data streams. But every time, operators must be able to prove to the regulatory authority that such congestion of its network was not foreseeable and that it took necessary steps to correct it. If the deployment of very high broadband networks takes longer than expected and operators face a durable saturation of their network, then the available bandwidth should be shared equally between all the subscribers and all service providers, until operators invest to upgrade their infrastructure”. See https://www.laquadrature.net/en/la-quadrature-answers-the-eu-questionnaire-on-net-neutrality The compromise amendments must be amended to include the notion of “unforeseen” congestion to correct this major flaw in the current wording. Failing this, the European Parliament might let operators create an artificial scarcity of bandwidth and business models based on discrimination, detrimental to investment in networks, competition and citizens’ freedoms online.

“The draft resolution amended with compromise amendments is overall weak, yet brings useful elements and slightly increases pressure on the Commission to take action. However, it also contains one major loophole. The Parliament can still fix the resolution to send a stronger signal to the Commission and the EU body of regulators: no restriction of Internet access harmful to competition and freedoms should be tolerated”, says Jérémie Zimmermann, spokesperson and co-founder of La Quadrature du Net.