Almost all of the EU's telecoms regulators have now published their annual reports, required under the Open Internet Access Regulation ((EU) 2015/2120).
The fourth set of annual reviews to be published in each EU Member State, the reports assess national telecoms providers compliance with the EU rules on network neutrality.
And, of those reviewed, there appears to be generally a good level of compliance. Zero-rating commercial offers attracted the most attention from regulators and focus from their enforcement actions.
The Open Internet Access Regulation came into force on 30 April 2016, bringing in an individual and enforceable right for end users in the EU to access and distribute Internet content and services of their choice. The Regulation introduced the principle of non-discrimination between the types and sources of data travelling across the internet.
Under the Regulation's net neutrality rules, National Regulatory Authorities (NRAs) are tasked with monitoring internet service providers' (ISPs) compliance. This is done in accordance with guidelines set by BEREC, the European body for regulators of electronic communications.
An important consideration is whether the practices of telecoms providers either negatively impact end users' rights to choose content and services freely or pose any threat to internet innovation. To assess this, the NRAs look at practices like zero-rating, managed services and traffic management.
Our telecoms experts and teams from across Europe have summarised the latest reports and set out the highlights.
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The Belgian Institute for Postal Services and Telecommunications (BIPT), the telecoms regulator, in its 2019/2020 report, published in June, considered that there were no major reasons for concern in Belgium with regard to open Internet access. In particular, there were no cases of blocking services or applications in the network were found; and the mobile data volumes included in the ISP offers continued to increase and unlimited tariffs have been introduced in order to set off the increase in mobile data traffic.
BIPT decided to organise its zero-rating monitoring by issuing a uniform questionnaire to the Belgian mobile network operators. ISPs which apply zero-rating have to provide the BIPT with quarterly figures updates. For one operator, Orange Belgium, the BIPT concluded that there was insufficient commercial room available for competing content and application providers and that the procedure for access to the zero-rating platform was insufficiently developed – which goes against the principle that zero-rated offers are only permissible if they are open to any relevant provider that wishes to join. Orange Belgium is expected to formulate a proposal that addresses the regulator's concerns.
Arcep, the French communications regulator, which published its report in June, has developed several tools to enable individuals to detect and report issues experienced when using fixed-mobile Internet operators in France. The "J'alerte l'Arcep" (an online complaint form) reported 146 complaints relating to different internet access services (for example, those offered in hospitals as well as users or small operators). The Wehe application, which is designed to detect traffic management and is contrary to net neutrality, has been downloaded 115,000 times since its launch in 2017 and, to date, no differentiation in network speeds has been detected by the application. Arcep set out plans to expand the scope of the Wehe app in the next year to enable it to detect port blocking processes.
Arcep has also been looking into access to Wi-Fi on transport services. The regulator investigated how in-flight Wi-Fi services are compatible with the principles of net neutrality and, as a result, Air France adapted its offers to make them as neutral as possible. In an investigation into Wi-Fi on trains, Arcep has used its information gathering powers to obtain additional information from SNCF, the national railway company, which will be reported on in the 2021 report.
The Federal Network Agency (BNetzA) in its 2018/2019 report (this year's report is not yet published) focused primarily on complaints as well as proceedings regarding commercial practices and traffic management.
Investigation into two zero-rating gaming products by major telecoms providers resulted in BNetzA assessing that one offer was designed in a clear, transparent and non-discriminatory manner, with the principle of treating all traffic equally. The second case is still under investigation at the time of publication of the report.
The formerly widespread practice among internet access providers of prohibiting the use of VoIP has almost completely disappeared. BNetzA intervened in only one case, in which the provider subsequently amended the contract terms.
BNetzA noted that not all complaints were in scope of the regulation, especially problems that end users had experienced at the level of content service (“over the top” services), IP interconnection and terminal equipment.
The Italian Communications Regulatory Authority (AGCOM) published its annual report on net neutrality monitoring on 30 June 2020. The Italian regulator issued a resolution (no. 348/18/CONS) which confirmed the users' right to choose their terminal device to connect to the Internet and provided for specific obligations that operators are required to comply with in order not to restrict that right. On this issue, AGCOM has carried out several monitoring and enforcement activities and has published clarifications in relation to questions expressed by operators on the matter.
AGCOM has carried out monitoring activities relating to zero-rating by analysing the commercial offers issued by the most relevant operators to ensure that they do not infringe the principle of open Internet access. Following these monitoring activities, most companies have made voluntary changes to their offers to ensure compliance with the Open Internet Access Regulation without any need to issue penalties.
However, AGCOM did take formal enforcement action in a case against Wind Tre SpA. The regulator considered that two zero-rating offers offered by Wind infringed Article 3 and 4 of the Open Internet Access Regulation and resulted in an overall fine of €240,000 and a ban on further zero-rated offers. These zero-rated plans allowed only certain zero-rated apps and services to continue connecting to the internet after the plan's internet allowance was used up, while all other internet traffic is slowed or blocked.
The Authority for Consumer and Markets (ACM) published its most annual report on net neutrality at the start of January 2020, which found that all Dutch telecom providers had implemented sufficient internal processes to ensure compliance with net neutrality rules. None of the Dutch telecom providers differentiated on content or type of application, although some did decide to clarify the information included on traffic management in their general terms and conditions as a response to the recent discussions with the ACM.
The Spanish State Secretariat of Telecommunications and Digital Infrastructures (SSTDI) reported no significant issues concerning compliance with the Open Internet Access Regulation in its most recent report in 2019 (the 2020 report is not yet published).
Only 0.53% of the claims received by the Spanish Telecommunications User Support Office in 2019 related to net neutrality issues, and of those complaints most related to issues regarding internet access speed.
The SSTDI has assessed whether the offers from all operators in Spain are in compliance with the EU Net Neutrality regulation and required (where necessary) such operators to adjust their offers in this regard. In particular, the Spanish authority has examined zero-rating practices in the Spanish market, which may include limitations in relation to the use of devices.
In addition to the Open Internet Access Regulation, the Spanish Data Protection Act also enshrines the right to net neutrality and the right of universal access to the internet. In this sense, it is interesting to note that infringements of the EU Net Neutrality regulation in Spain may also be fined under the data protection regime, which could imply higher sanctions than the Spanish General Telecommunications Act, although none were reported in 2019.
Ofcom published its report on 8 July, also citing good compliance from telecoms providers. The two zero-rating offers examined did not hamper innovation or consumer choice according to the regulator. One was an open platform seeking to on-board more services, and, therefore, was actively trying to give consumers more choice. The other related to a vertically integrated mobile offered by an operator with relatively low market share, and where the provider supplied evidence that their offer had not had an impact on consumer app usage to a material degree.
In relation to traffic management, Ofcom noted that, since the publication of its Traffic Management Framework, it had identified no further cases of concern regarding ISPs' traffic management practices.
The Covid-19 factor
Among the reports that were published after the outbreak of the Covid-19 pandemic, observations were made on traffic management in the context of the additional pressures on the network due to changing patterns of use during the coronavirus emergency.
Under the Open Internet Access Regulation, ISPs must treat all traffic equally but can use "reasonable" traffic management practices. Reasonableness is not determined by commercial benefit. Rather, any traffic measurement measures must be used to manage quality of service and be transparent, proportionate, non-discriminatory, and in place for no longer than necessary. Covid-19 provided a potential test for these provisions, with additional pressure on domestic networks, and the increased use of networks for professional use as well as entertainment. The reports noted how networks were able to manage congestion during this period.
In Italy, Agcom increased its monitoring activity in relation to traffic management. The regulator reported that most of the companies surveyed had not adopted specific measures following the pandemic as the impact of network congestion had been limited by other measures it had already prescribed.
A general view found across Europe, particularly in Belgium, France and the UK, is that the exceptions did not have to be relied upon heavily, as the telecoms, media and entertainment industries worked to find practical solutions. Reduction of congestion on the network was managed by, for example, content providers agreeing to reduce video quality to standard definition and gaming companies being flexible on download speeds and the release of updates, as well as upstream players value chain optimising their network via routing and peering arrangements.
For the UK, the impact of Brexit needs to be taken into consideration. After leaving the EU on 31 January, the UK entered into an 11-month transition period, which ends on the 31 December 2020. During the transition period, most EU rules and regulations, including the Open Internet Access Regulation, continue to apply, but, after the end of the transition period, the UK will become a third country for the purposes of these regulations.
The Open Internet Access Regulation is implemented as a "regulation" rather than as a "directive" and is therefore not guaranteed to continue applying in the UK post-transition. However, the requirement for Ofcom to report annually has been implemented into the UK under the Open Internet Access Regulations in 2016, which means, unless repealed, the publication of the reports will continue to be a legal requirement after the transition period ends on 31 December 2020.
The government's intention is for the status quo for net neutrality to continue in the UK post-transition by implementing the Open Internet Access (Amendment etc) (EU Exit) Regulations 2018 (SI 2018/1243) which retains the Open Internet Access Regulation in UK law from 31 December 2020 (that is, the end of transition). One notable change that will apply in the UK is resolving the existing tension relating to parental filters to ensure that the power for internet access providers to prevent or restrict access for child protection or other purposes in the Digital Economy Act will prevail over any restriction on applying internet filters under net neutrality rules.