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ISPs must be honest to keep net neutrality alive, say watchdogs

Being transparent is now a good thing

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Providing consumers with transparent information about the quality and restrictiveness of their internet service is "fundamental" if net neutrality it to be achieved, European telecoms regulators have said.

The Body of European Regulators of Electronic Communications (BEREC) said that national regulators must ensure that internet service providers (ISPs) provide consumers with accessible, understandable, meaningful, comparable and accurate information in order to allow them to make "informed choices" about services. BEREC is made up of representatives from each of the national telecoms regulators in the 27 EU countries, including Ofcom in the UK.

"We believe that a fully effective transparency policy should fulfil all of the following characteristics: accessibility, understandabilty, meaningfulness, comparability and accuracy," BEREC said in draft guidance (64-page 584KB PDF) on net neutrality and transparency.

"These characteristics are mostly interlinked and will need to be fulfilled while observing the principle of proportionality. We also set out that end users must be able to make informed choices throughout the different stages of a commercial relationship, ie, before signing the contract, at the point of sale and after signing the contract," it said.

"The information needed differs depending on these different stages and will need to be generic one time and individual at another stage," it said.

Net neutrality is the principle that an ISP will deliver all content requested by a customer equally, not allowing content producers that pay it to have preferential access to its subscribers.

The net neutrality debate has been most lively in the US, where telecoms companies have said that content producers should share the cost of network building and maintenance. Opponents of that view claim that subscribers' fees to ISPs should buy them access to all information equally, not to a service in which some content is prioritised because of deals between ISPs and content producers.

In the EU rules around net neutrality have not been explicitly written into EU-wide Directives, however recent changes to the Framework for Electronic Communications Directive set out certain requirements for national regulators to promote the concept.

Under the revisions to the Directive EU member states must ensure that national regulatory authorities "take all reasonable measures" proportionate to "promote the interests of the citizens of the European Union by ... promoting the ability of end-users to access and distribute information or run applications and services of their choice".

Regulators need to pull their weight

BEREC said that providing transparent information about services can help achieve those regulatory requirements. It said that ISPs had a direct regulatory responsibility to provide information about the kind of services they offer, but said regulators in individual member states should decide how they use other "indirect" measures to ensure consumers are provided with transparent information about services.

BEREC said that regulators could decide to actively engage in promoting transparency measures themselves. It urged the individual regulators to consider a variety of light-touch and pro-active approaches they could take, including leaving "the design of transparency solutions to the ISPs" and only intervening when transparency is not being delivered. BEREC also suggested regulators could issue industry with guidance on what good transparency is and how it should be communicated.

BEREC said there were strengths and weaknesses associated with each approach and that it was up to individual regulators to decide what is needed to ensure their "regulatory objectives" are met.

"The level of involvement corresponding to [allowing industry to self-regulate and only intervening if necessary later] may not be sufficient considering the importance of the regulatory objectives at stake, particularly in relation to concerns... regarding the effective exercise of fundamental rights and freedoms, which could arise as a consequence of traffic management or other restrictions," the guidance said.

"On the other hand, a policy mix mostly based on [issuing guidance on what good transparency is, allowing the industry to work out the details and instructing them on how the information should be set out] is a promising perspective in a number of countries. In any case, national regulatory authorities should monitor the results of the transparency policy in place, in order to adapt it if deemed necessary," it said.

BEREC said that regulators should consider standardising some terminology used to describe internet services in order to make it easier for consumers to understand. As well as promoting transparency, regulators must also consider other factors to ensure they meet their regulatory requirements, BEREC said.

"Transparency regarding net neutrality is a key pre-condition of the end users’ ability to choose the quality of the service that best fits their needs and also should reduce the asymmetry of information existing between providers and end users, fostering proactive behaviour by internet service providers (ISPs)," BEREC said in its guidance.

"At the same time, we underline that transparency alone is probably not sufficient to achieve net neutrality, since other factors also have to be taken into account - the existence of competition in the market, the reduction of barriers to switching are, among others, important factors that, alongside transparency, can contribute to achieving the objective of net neutrality set out in the ... Directive," it said.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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