The three key interested parties included the Content and Application Providers (CAPs), the Internet Service Providers (ISPs) and activist groups and individuals. BEREC’s Report on the outcome of the public consultation on the draft BEREC guidelines on net neutrality showed that CAPs and civil society were mostly united in their demands. Similar to a grassroots mobilisation on net neutrality experienced earlier in the United States, European activist groups became the most vocal parties in the debate, utilising both inside and outside lobbying mechanisms. The activist campaign grew in salience as names such as Tim Berners-Lee, Lawrence Lessig, and Barbara van Schewick called for ‘saving the internet’ in an open letter to European citizens and policy makers.
The most contentious issues for the activists mainly fell under Article 3 (Safeguarding the open internet access) of the EU Regulation, i.e. zero-rating, principles of traffic management, and definition of ‘specialised services’. First, the groups raised their concerns over the implications of anti-competitive ‘zero-rating’ practices of internet providers, demanding ‘zero-rating’ prohibition in the EU. Second, in terms of traffic management they argued that measures for managing internet traffic congestion must be ‘application-agnostic’; meaning that ISPs measures should not be undertaken on the basis of ‘specific characteristic of content, applications, services or devices’ (see, Save the Internet Campaign, FAQs). Any class-based traffic management should be allowed under very limited circumstances and in line with the EU net neutrality Regulations, banning traffic management beyond reasonable, transparent, non-discriminatory and proportionate measures. Finally, third, civil society groups demanded no classification of existing online services as ‘specialised services’ which, according to EDRi, would allow circumvention of the principle of non-discrimination set in the EU Regulation on net neutrality.
As BEREC already pointed out in its response to the consultation submissions on the draft guidelines, in terms of the issue of zero-rating practices of internet providers it did not intend to ‘go further than the Regulation’, which limited but not prohibited them. In this respect, the final guidelines stipulated that ISPs can offer commercial practices such as zero-rating only if they fall outside the definition of ‘sub-internet services’. These are practices that restrict access to only specific services and applications or enable access to only particular websites (BEREC Guidelines, Para. 17, p. 7). BEREC re-asserted the seven practices (no blocking, no slowing down, no alteration, no restriction, no interference with, no degradation, no discrimination) prohibited in the Regulation, yet it also provided exceptions when traffic management measures can be considered ‘reasonable.’ For instance, measures can be considered ‘reasonable’ and ‘proportionate’ if they are based on ‘objectively different technical quality of service [QoS] requirements of specific categories of traffic’; do not monitor users’ specific content, and are not applied longer than necessary (BEREC Guidelines, Art 3 (3) second subparagraph, p. 15). With reference to the IETF RFC 7657, the Guidelines acknowledge that technical QoS requirements, such as latency, jitter, packet loss and bandwidth (p. 17), may apply to communications that occur in ‘real time over an IP network using voice, video, text, content sharing’ (IETF, RFC 7657). In addition, traffic management measures can be applied in order to prevent or deal with temporary network congestion, provided that equivalent categories of traffic are treated equally (BEREC Guidelines, Article 3(3) (c)). The Guidelines referred to IETF RFC 6057 and IETF RFC 6789, suggesting that the aim should be a congestion management measure that is ‘application-agnostic’, and ‘NRAs should consider whether such types of congestion management would be sufficient and equally effective to manage congestion’.
Lastly, BEREC did not ban the classification of some internet services as ‘specialised services’, such as higher quality voice (VoLTE), IPTV services, real-time health services (e.g. remote surgery), VPNs, other services providing public interest or machine-to-machine communications. Taking into consideration potential future developments in technology, the Guidelines provided for a rather flexible classification of specialised services, which should be assessed by the NRAs on a case-by-case basis. However, as stipulated in Article 3(5) second subparagraph, those services should be offered ‘only if the network capacity is sufficient to provide them in addition to any internet access services provided’, not as their ‘replacement’ or ‘to the detriment of the availability or general quality of internet services for end-users.’
Similar to those in the United States and India, activist groups in favour of stricter interpretation of net neutrality rules in the EU declared victory. Following the publication of the BEREC’s Guidelines, the coalition of more than 20 European NGOs united under the ‘Save the Internet in Europe’ initiative thanked their supporters. Although some experts such as Chris Marsden have warned that it still remains to be seen how exactly the national regulatory bodies will implement the rules, the EU decision-makers’ idea of equal and non-discriminatory internet traffic has been reasserted.