The draft guidelines issued on June 6, 2016 by the Body of European Regulators for Electronic Communications (BEREC) on the application of the European Commission's (EC’s) recent regulation on net neutrality have finally shed some much-needed light on key aspects that the text of the regulation had left unclear, such as how to treat zero-rating. However, the flexible case-by-case approach could carry some uncertainty.
The case-by-case approach provides flexibility, but leaves room for uncertainty
The draft guidelines issued by BEREC have clarified some of the key aspects that were unclear. In particular, there is now a clearer idea as to how EU regulators will be required to deal with the practice of zero-rating (i.e. offering a service outside a customer's data allowance).
Zero-rating will be considered in breach of the rules if non-zero-rated services are blocked once a customer's data allowance is exhausted, leaving a zero-rated service accessible. This makes things clearer; however, in practice it could only apply to a limited number of cases because most customers currently manage to stay within their monthly data limits.
All other types of zero-rating offers will have to be assessed on a case-by-case basis. Although this is a sensibly flexible approach, it will carry an unwelcome degree of uncertainty. National regulators will decide whether specific offers will be safe, and their conclusions on similar cases could be different. If EU institutions have the idea of a "single market" at heart, they should do better in fostering clarity and consistency.
The guidelines will be subject to consultation for the next six weeks, which means they could change based on stakeholders' comments. However, the scope for changes is likely to be limited because BEREC will aim to stick to the deadline of August 30, 2016 to finalize the guidelines.
The Regulatory Position on Telco–OTT Partnerships, TE0007-000925 (July 2015)
"A wave of bans on zero-rating is pushing telcos to become dumb pipes," TE0007-000996 (February 2016)
Luca Schiavoni, Senior Analyst, Regulation