Net-neutrality guidelines will add heat, not light, to lobbying maelstrom

25 August 2016. Magnus Franklin

Next week, an umbrella group of EU telecom regulators will unveil what its members see as a seminal set of guidelines for enforcing net neutrality.

The text, formally adopted today, will provide plenty of ammunition for those involved in the ongoing war of words on subject. But it will have no real impact on the legislation already in place. The interpretative guidelines are just that — nonbinding advice, no more.

Because of this, little of what the Body of European Regulators for Electronic Communications has to offer will provide reassurance. Berec’s guidelines will soothe the frayed tempers of neither broadband providers not Internet-freedom activists.

All of which points to a flaw in the legislation, which is meant to ensure that all traffic moving on the web is treated equally — with no blocking, throttling or special treatment for any content.

Net neutrality was enshrined in EU law this past April, in what was ultimately dubbed the “telecom single market” package. The bill cobbled together rules meant to end mobile-roaming surcharges and cement net neutrality in the statute books.

But EU lawmakers didn’t quite finish the job, handing Berec the task of drafting interpretative guidelines for how the law should be applied. What normally is a dry, simple process for wonks quickly descended into a lobbying free-for-all, giving fresh oxygen to well-rehearsed yarns that have been spun for the better part of a decade.

Internet activists

Internet-freedom activists, turning to campaign platforms like the Avaaz Foundation, flooded Berec with half a million cut-and-paste petitions, in a bid to turn the volume of the net neutrality controversy up to 11.

“Right now, big corporations are launching a final assault to persuade European telecom regulators to give them control over the Internet,” reads the blurb on the website of Avaaz, a US-based progressive lobby group.

“While they would retain the power of high speeds, the rest of us would be condemned to slower Internet,” the warning says, not sparing dramatic bold typeface to drum home the message.

“Imagine the impact it would have on Avaaz’s ability to run impactful campaigns to fight corruption, save lives and protect our planet,” it reads, calling for enough signatures to “drown out the voices of the powerful telecom lobbies.”

But the alarmist rhetoric has little to do with the legislative reality.

Avaaz urges the EU to “close all loopholes in the current proposals” that would allow service providers to “prioritize certain content and act as gatekeepers.” One snag: There weren’t any proposals — or loopholes — to speak of.

There is a law, which came into force in April, in all its binding, official glory. It’s a done deal.

5G jitters

While the activists were working themselves into a lather, a parallel panic began boiling up in the telecom industry, where operators worried that the Berec guidelines would make the deployment of fifth-generation mobile networks impossible.

The logic behind their fear is easy to grasp: 5G technology has, as a core principle, the steering and prioritization of traffic. This is the technical way that operators hope to squeeze more capacity into a fixed, and limited, amount of radio spectrum.

So, as activists accused operators of using doomsday scenarios over 5G to guilt-trip regulators into being more lenient, operators shut their eyes and prayed regulators would hold their nerve.

Yet the oddity of this net-neutrality lobbying clash is that it exists at all. Nothing that Berec is putting on the table really matters.

 ‘Utmost’ account

The Berec guidelines aren’t binding on regulators. Nor will they stand up in court.

In EU telecom law, the best parallel can be found in the “Article 7” procedure of the EU’s Electronic Communications Framework Directive.

This saw a shortlist of principles fleshed out by nonbinding recommendations, systems for peer review and feedback, that EU officials and national watchdogs promise to take into “utmost account” when they rein in the market dominance of former monopolies.

Well — guess what? When tested in courts, these guidelines have been given short shrift, sidelined by the original principles regulators are legally bound to follow.

The upshot is that the way net-neutrality law is applied will come down to the extent to which regulators decide they want to adhere to the guidelines, and — ultimately — courts of law. Nonbinding guidelines will be just that: nonbinding.

And the process has already begun. For example, Slovenia’s net-neutrality law — a forerunner to the EU regulation and without doubt on the more draconian end of net-neutrality principles — are being successfully challenged in local courts.

As for the guidelines, they will doubtless be used to fuel the ongoing lobbying storm, both in the EU and across the globe, so their wording will have an impact on the debate.

The fight over the future of net neutrality will continue, but next week’s “big reveal” will wind up as little more than a footnote in the history of the web.