Net Neutrality under Threat in Europe - Unnecessarily

As long-suffering readers of this column will know, I've been following for a while the winding road leading to the European Commission's proposals regarding net neutrality in Europe. Along the way, there have been many twists and turns, with...

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As long-suffering readers of this column will know, I've been following for a while the winding road leading to the European Commission's proposals regarding net neutrality in Europe. Along the way, there have been many twists and turns, with hints of first one direction, then another. But today, the Commission has finally released its plans - not just for this area, but for the whole telecoms market in Europe:

The Commission today adopted major regulatory proposals to complete the telecoms single market and deliver a Connected Continent. The overarching aim is to build a connected, competitive continent and enabling sustainable digital jobs and industries; making life better by ensuring consumers can enjoy the digital devices and services they love; and making it easier for European businesses & entrepreneurs to create the jobs of the future

As the extremely long Web page indicates, there's a large number of proposals there. Many of them are really welcome, and I recommend reading (or at least skimming) though them. But here I want to concentrate on net neutrality, since it is the one that is most relevant to this column – and also one area that is potentially problematic.

First the good news. Blocking content or services is explicitly forbidden:

Within the limits of any contractually agreed data volumes or speeds for internet access services, providers of internet access services shall not restrict the freedoms provided for in paragraph 1 by blocking, slowing down, degrading or discriminating against specific content, applications or services, or specific classes thereof, except in cases where it is necessary to apply reasonable traffic management measures. Reasonable traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:

a) implement a legislative provision or a court order, or prevent or impede serious crimes;

b) preserve the integrity and security of the network, services provided via this network, and the end-users' terminals;

c) prevent the transmission of unsolicited communications to end-users who have given their prior consent to such restrictive measures;

d) minimise the effects of temporary or exceptional network congestion provided that equivalent types of traffic are treated equally. Reasonable traffic management shall only entail processing of data that is necessary and proportionate to achieve the purposes set out in this paragraph.

As far as traffic management is concerned, the key words there are "non-discriminatory" and "treated equally", which mean no differential slowing down of particular content or services. That preserves net neutrality. However, the following doesn't:

End-users shall also be free to agree with either providers of electronic communications to the public or with providers of content, applications and services on the provision of specialised services with an enhanced quality of service. In order to enable the provision of specialised services to end-users, providers of content, applications and services and providers of electronic communications to the public shall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity. The provision of specialised services shall not impair in a recurring or continuous manner the general quality of internet access services.

As you can see, there is an attempt to mitigate the evident danger here: that "specialised services" will push everything else into the Internet slow lane – something I've written about before.

Alongside things such as IPTV, more "serious" uses like telemedicine are frequently invoked to justify permitting specialised services with guaranteed quality of service – for example speed, or latency. But this is really just a clever trick on the part of the telecom companies and their lobbyists, who are the main drivers of this attempt to kill net neutrality.

After all, if an ISP is able to provide a guaranteed quality of service for such specialised services, running on the general Internet, then there is no reason not to provide that guaranteed quality of service for everything on that connection.

Whenever the guaranteed speeds or latency are required for telemedicine (or IPTV), all the user has to do is reduce the use of other applications. In that case, most of the connection is devoted to the "specialised" service, which is able to make use of the quality of service guarantees (or most of them, at least.) This allows quality of service to be provided without damaging net neutrality: all IP packets are treated equally, but sometimes the user chooses to send mainly one kind of IP packet over the connection.

This could even be controlled in software, with "unnecessary" services shut down or throttled during times when priority needs to be given to telemedicine or IPTV or whatever. But the crucial thing is that this facility is under the user's control, not that of the service providers.

This shows that it is not necessary to kill net neutrality in order to provide services that require particular quality of service guarantees. But there is a very real danger that the European Commission's proposals to allow specialised services will do just that. That's because the "protection" for net neutrality misses the point, and won't therefore help.

If a startup is in competition with an established market leader, and the latter is offering a "specialised service" with a guaranteed quality of service, while the newcomer is not (because it can't afford to pay ISPs the requisite fees for doing so), the incumbent will have a huge advantage. That's because by definition the specialised service will run better than those running on the "ordinary" Internet, which are bound to be perceived as slow or unreliable compared to the one given preferential treatment. It doesn't matter that the specialised service doesn't impair the standard service "in a recurring or continuous manner": it's simply human nature to prefer the service that runs better, and the specialised service will, thanks to the quality of service guarantees. In this way, innovation will be disadvantaged and discouraged, and deep-pocketed market leaders entrenched.

The tragedy is that this danger is entirely avoidable. If ISPs were allowed to offer quality of service guarantees for additional payment, just as they can offer faster services, or greater monthly bandwidth, but not tied to any one service, then end-users could use this connection for both established players and newcomers alike, enjoying a superior technical experience for both. They could then decide which service to adopt based on the performance or the merits of the rival offerings, comparing like for like, rather than being pushed in the direction of established companies able to afford deals with ISPs to provide superior connections compared to those available to startups.

The European Commission's stated aim with the new telecoms regulation is "to build a connected, competitive continent", but the lack of meaningful protection for true net neutrality will actually reduce business opportunities by placing barriers in the way of new entrants. The good news is that the European Parliament now has its say on the matter, so there's a chance to add precisely the safeguards we need to protect net neutrality fully, and with it innovation and competitiveness.

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