After the introduction of the EU's net neutrality regulation on April 30, 2016, the Body of European Regulators for Electronic Communications (BEREC) was tasked with drawing up guidelines for how national regulators should interpret and enforce the rules. In July 2016, BEREC issued a consultation on a draft of the guidelines that attracted almost 500,000 responses, mostly from the general public, before finalizing the guidelines on August 30, 2016. Although some perceived loopholes were closed, in general the guidelines continue to promote a certain degree of flexibility.
Pro net neutrality camp claiming victory but a certain amount of wiggle room remains
Initial reaction to the guidelines has been mixed. Open Internet advocates have been more vocally pleased with the guidelines because they appear to limit the ability of Internet service providers (ISPs) from to create "fast lanes" to provide specialized services. Network operators have been more muted amid concerns that the guidelines are too prescriptive and overly restrictive.
One of the biggest areas of interest was around the practice of zero-rating traffic. The EU regulation does not prohibit this commercial practice per se, but instead leaves it up to the national regulators to decide whether it's anticompetitive or not. BEREC was clear to point out that a one-size-fits-all approach would not work here. Some cases could clearly infringe the regulation, such as when all applications are blocked except the zero-rated application when the consumer's data cap is reached, but for other cases it is not as clear. BEREC has suggested that when assessing zero-rating practices, national regulators should consider, among other things, whether the aims of the regulation are being circumvented, the market position of the ISP and content/application provider, and the scale of the practice and the availability of alternative offers.
Publishers and advertisers may also be encouraged by the guidelines because they suggest that network-level ad blocking would go against the principles that make up the regulation. Network-level ad blocking, which operators such as Three in the UK have been considering, would be prohibited unless the volume of ad-related traffic was so great that it was hampering the performance of the network for everyone else.
Although the guidelines are final, they are likely to be reviewed and updated once they have been used in practice by national regulators. Of course, the guidelines are just guidelines, and while national regulatory authorities must take "utmost account" of them, they are not binding and the NRAs are free to deviate from them if they wish.
"Zero-rating is likely to be safe under BEREC's guidelines," TE0007-001031 (June 2016)
Matthew Howett, Practice Leader, Regulation