“Connected Continent” – Open Internet and Net Neutrality

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“Connected Continent” – Open Internet and Net Neutrality
Views of BT Group plc
BT is committed to an open Internet, providing the benefits of full consumer choice and commercial
innovation. We believe anti-competitive blocking should be prevented, and reasonable traffic
management practices allowed, balanced by full transparency. We are continuingly upgrading our
network so that internet access service is improving in parallel to the introduction of innovative new
services – these are mutually reinforcing.
These key principles can be included in EU harmonising legislation, but the detailed definitions have to
be judged extremely carefully to ensure they are: legally clear; consistent with other definitions; future
proof; and whether they will protect, rather than inadvertently damage, consumer interests. The study
carried out for the European Parliament IMCO Committee (“Network Neutrality Revisited: Challenges
and Responses in the EU and in the US (December 2014)”) clearly explains the complexities of the issue
and why such a carefully balanced approach is essential.
The proposal agreed within Council (2 March 2015) achieves broadly the right balance. The text agreed
by the European Parliament Plenary in April 2014 is in places overly restrictive as well as creating legal
uncertainty, which undermines investment and puts the EU’s Digital Agenda objectives at risk, including
public interest objectives such as protection of minors. We propose a number of amendments below
designed to preserve the principle of an open internet while allowing operators scope to meet customers’
demands and public interest objectives.
Open Internet, Net Neutrality and Non-Discrimination
The Council proposal embeds the key principles of net neutrality in an effective manner within the
Objectives and Scope (Art.1) (“ensuring non-discriminatory treatment of traffic in provision of internet
access services”) as well as in subsequent articles. Expressing the principles of Net Neutrality in this way
would be robust enough for national regulators to apply, and reduces the risk of an unworkable or
unclear definition. If it is still deemed necessary to define ‘net neutrality’ itself, the wording proposed in
the European Parliament by ITRE (Recital 45, March 2014), strikes a reasonable balance in conveying
the rationale for the specific provisions in the actual Articles: “The principle of ‘net neutrality’ in the open
internet means that traffic should be treated equally, without discrimination, restriction or interference,
independent of the sender, receiver, type, content, device, service or application.”
Specialised Services and Internet Access
Specialised Services exist today in response to customer demand (eg internet TV). Referencing them is
only necessary insofar as to affirm the principles that:
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They are a legitimate and valued response to consumer demand;
They are distinct from internet access;
They are just one of a number of activities that may affect network performance – there is no
evidence of detrimental effect on internet access resulting from services such as IPTV;
It should be up to NRAs to determine the acceptable level of internet access service.
The Council text provides a workable solution by following this kind of approach. A specific definition of
specialised services is not necessary - any terms would have to be precisely and rigorously tested so
there is no legal doubt as to what is covered and to be future-proof - and would risk outlawing existing
services or preventing new ones. An additional clause should be inserted to allow Member States to
decide whether to support self-regulation as an alternative to these provisions if that can secure the
objective of an open internet.
It must also be noted that as services migrate to all-IP networks it will still be essential to prioritise some
(voice for example, as well as video) above others. However this does not imply a detrimental effect on
internet access and any reference to ‘detriment’ needs to reflect this. Internet Access should be defined
in a neutral way which does not overlap with other definitions such as ‘net neutrality’.
Traffic Management and other exceptions to ‘Net Neutrality’
Traffic management is the way in which ISPs ensure capacity is managed efficiently in order to ensure
optimum quality of service for all customers at the best price. For example, existing VoIP services could
not function without it. Many other legitimate and public interest objectives – such as child protection or
containing cyber-security threats - can also only be met by management, blocking or filtering. The
following list adapted from the UK ‘Open Internet Code of Practice’ provides a possible example of a
future-proof approach, including the ability to:
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manage congestion on the network;
block services as required by law or a court order;
block sites and services included on any nationally recognised list of undesirable sites and services
[the Internet Watch Foundation list in the UK];
deploy age verification/child protection/parental control tools at the request of the end-user;
deploy content filtering or make available filtering tools where appropriate for public wi-fi access;
support the delivery of [managed] specialised services;
ensure elements of a consumer’s contract are observed (e.g. data caps, download limits, heavy user
policy);
safeguard the security and integrity of the network;
any other purpose as agreed or directed by the National Regulatory Authority.
Scope should be allowed for National Regulatory Authorities to substitute self-regulatory measures if
these would meet or exceed the objective of preventing the abuse of traffic management.
Conclusion
We do not believe there is sufficient evidence of market failure to justify a Regulation (in the UK for
example the Commission itself has recently noted that no complaints have been received by the
regulator), and we consider the wording adopted in the European Parliament First Reading to be overly
restrictive and legally uncertain. Unlike in the US, the European internet access market is strongly
competitive, which means content providers’ and consumers’ ability to choose acts as a significant
constraint on access providers without the need for regulation. The priority now should be to find a
workable balance which leaves National Authorities greater flexibility to maintain self-regulatory
mechanisms where these already meet policy objectives, and to avoid overly prescriptive detail which,
being based on the internet of today, risks restricting the innovations and consumer benefits of tomorrow.
31 March 2015
BT Group plc
BT is one of the world’s leading communications services companies, serving the needs of customers in the UK and in more than 170
countries worldwide.
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