BEREC’s rewriting of the net neutrality guidelines could severely limit operators’ commercial practices
New guidelines to reflect recent rulings of the ECJ: On Wednesday, BEREC opened a consultation on new guidelines for the implementation of the Open Internet Regulation (Europe’s net neutrality regulation), which it had to rewrite following recent rulings of the European Court of Justice. The ECJ considered the practice of zero-rating to be incompatible with the Regulation, since it is a form of traffic management based on commercial considerations, and as such incompatible with the requirement to treat all traffic equally. In a preliminary consultation, operators and big tech tried to avoid the demise of this widespread practice. ETNO and the GSMA argued that it could be seen as a form of differentiated billing rather than one of traffic management, while Google said that the ECJ’s ruling still allowed zero-rating of entire categories of services.
BEREC doesn’t seem to have heard industry’s arguments: BEREC’s current draft could severely limit operators’ freedom in their commercial practices compared to what’s been possible until now. Operators may not even zero-rate their own applications. Despite these limitations, BEREC has been mindful of the lessons learned during the pandemic, when some form of zero-rating became essential to ensure ongoing access to essential services. The guidelines require NRAs to assess whether an operator has zero-rated a service to comply with legislation or measures taken by public authorities. Among the examples of what would still be allowed, BEREC has included “application-agnostic” offers (e.g. where data consumption is not counted during a certain time period, without treating any application favourably) and bundles where connectivity is offered with an application without giving preferential treatment to its traffic (e.g. a music streaming subscription).
Operators could ask for amendments to the Regulation next year: The consultation is open until 14 April, and BEREC plans to finalise the new guidelines in June. However, we shouldn’t expect significant changes at this stage, since they would require BEREC to depart from the ECJ’s interpretation that zero-rating is not permitted. Operators should now focus on the next report on the implementation of the Regulation, which the EC will issue in 2023. This could be an opportunity to advocate for changes, depending on the impact the new guidelines will have had by then. In the meantime, some lessons could also emerge from the UK, where Ofcom is considering calls for a more flexible approach to net neutrality.
