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This time last week we were readying ourselves for BEREC (that’s the Body of European Regulators for Electronic Communications to you and us) to publish its latest round of guidance on net neutrality. The guidelines that it’s produced aim to help Ofcom (and its European counterparts) enforce the “common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights” that came into force in November 2015. Following BEREC’s press conference, it didn’t take long for net neutrality advocates to declare the guidelines a victory for civil society. Meanwhile, telecoms companies across Europe and America, who have been campaigning to be able to exploit the Internet’s commercial opportunities to their fullest extent (this doesn’t include Entanet we hasten to add), gave their views on “a missed opportunity” through gritted teeth.

On first reading of the 45 page document, it appears that there is nothing in the Guidance that we haven’t heard before. On closer inspection though, there are elements that will mean we all ought to be keeping an eye on how this Regulation develops in the future and on Ofcom and its too-close-for-comfort relationship with BT.

Backroom talks ahoy?

The first of our reasons for such scrutiny is Recital 5 of the Regulation which says “… Providers of internet access services should not impose restrictions on the use of terminal equipment connecting to the network in addition to those imposed by manufacturers or distributors of terminal equipment in accordance with Union law”. In plain English this means end users should be free to use whichever modem equipment they choose, as long as it is fit for the job. Moreover, ISPs can’t penalise them for it. Given that BT haven’t yet issued any kind of public statement denouncing this freedom to choose, we wonder if backroom talks with Ofcom are on the cards. We don’t expect that BT will simply roll over and agree that any old modem can be connected to their FTTC lines, which means that they’ll need to agree with Ofcom that they can continue insisting that only approved modems can be used.

Has the point been missed?

Moving on to the provision of additional “specialised services” such as TV over the Internet (IPTV) and high quality VoIP calls from a mobile (VoLTE); the Regulation says that these can only be provided if there is sufficient network capacity to do so – the actual wording can be found at paragraph 117 of the Guidelines: “In a network with limited capacity, IAS [Internet Access Services] and specialised services could compete for overall network resources. In order to safeguard the availability of general quality of IAS, the Regulation does not allow specialised services if the network capacity is not sufficient to provide them in addition to any IAS provided, because this would lead to degradation of the IAS and thereby circumvent the Regulation.” What’s interesting about this, is that it doesn’t specifically say that the likes of BT cannot withhold bandwidth from end users that do not purchase specialised services from them. We’ve heard anecdotal tales from disgruntled users who could achieve 7Mbps downloads at best until they signed up for IPTV services, only to discover that their line could achieve speeds of 15Mbps once the service went live. To us this seems like a glaring omission on the part of BEREC, the EC and by default, our own regulator. The very point of net neutrality – preventing the commercial manipulation of the Internet while improving consumer experience – is missing from this crucial documentation and is undoubtedly a loophole that giants like BT will try to exploit.

To Brexit and beyond!

The Guidelines end with the confirmation that regulators will need to submit annual reports detailing how they are enforcing and ensuring compliance with the Regulation by the end of June each year, with the first due in 2017. This means that for all of those firms thinking that they can try and skirt the system because of the Brexit clause*, you’re wrong. Any member of the EU can only “maintain national measures” until 31st December, and only if they notified the EC of such measures prior to the 30th April 2016. Otherwise the rules apply now, and we expect that the Open Internet Code of Practice put in place by the Broadband Stakeholders Group (which has already updated the Code to be in line with EU regs) will ensure that they continue to do so beyond any departure from the European Union.

*The assumption that we don’t need to comply with any European regulation because we intend to leave the EU eventually.

Everything else you need to know

There’s much we haven’t covered in this blog post and that’s purely because it’s already been talked about at length across various media outlets. Take a look at the links in ‘Further information’ if there’s more that you’d like to know about what the Regulation means for the channel.

Have your say!

Are you, like Tim Berners-Lee, happy that BEREC’s guidelines have put the civic and social responsibilities of the Internet before the commercial possibilities or do you think rules should be softened to maximise the commercial opportunities that exist? Do you think that not enabling suppliers the opportunity to cash-in on the Internet will mean that there will be even less investment in networks? Let us know your view by leaving a comment below.

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