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MEPs: Specialised services? Oui. 2-speed internet? Nein

Seek to restrict caveats to new EU net neutrality rules

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MEPs have called for greater restrictions on content producers' ability to set minimum internet service provider (ISP) service levels for their content. Producers and ISPs themselves need to be more restricted than is planned under new EU telecoms rules, they said.

The European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) Committee has published a list of amendments (67-page/435KB PDF) MEPs that make up the group would like to see made to the new legislative framework that the European Commission has drafted to reform the EU telecoms market.

Under the Commission's proposals, published in September last year, ISPs would be subject to new "net neutrality" rules.

Those rules would, generally, require ISPs to deliver "the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialised services".

The Commission's proposals do allow consumers and ISPs or content providers to form agreements that will see specific content delivered "with an enhanced quality of service" via "specialised services". In order to facilitate this arrangement, ISPs and content providers would be free to legitimately agree on the nature of the enhanced quality of service to be provided, subject to conditions.

The Commission's proposals make clear that ISPs would be banned from providing "specialised services" if they impaired "in a recurring or continuous manner the general quality of internet access services".

However, some members of the LIBE Committee have suggested changes to the plans to further restrict the circumstances in which specialised services can be provided.

According to one proposed amendment, the provision of enhanced levels of service and access to content would have to be provided "within closed electronic communications networks" and the specialised services would be subject to "defined quality of service or dedicated capacity". In addition, the services provided in this manner could not be "functionally identical to services available over the public internet access service".

Furthermore, ISPs wishing to facilitate such services would, similarly to the Commission's proposals, be obliged to ensure that doing so does not "impair the quality of internet access services".

"Providers of content, applications and services and providers of electronic communications to the public should therefore be free to conclude specialised services agreements on defined levels of quality of service as long as such defined levels of quality are technically necessary for the functionality of the service and these agreements do not impair the quality of internet access services, in accordance with the principle of net neutrality," one proposed amendment to a non-binding recital suggested by the LIBE Committee said.

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

The European Commission has sought to enshrine this principle into EU law with its proposals, but its draft text contain a number of carve outs that allow ISPs to deviate from the principle.

The rules, if introduced as originally drafted, would prohibit ISPs from "blocking, slowing down, degrading or discriminating against specific content, applications or services, or specific classes thereof" unless it is "necessary to apply reasonable traffic management measures".

ISPs' traffic management would have to be "transparent, non-discriminatory, proportionate and necessary". The proposals define 'reasonable traffic management measures' as activity such as the blocking or throttling of communications to combat serious crimes like the distribution of child pornography. The term also covers cases where ISPs seek to "preserve the integrity and security" of their network or services they deliver over the network, or "prevent the transmission of unsolicited communications" where customers have consented to the ISPs taking such action.

In addition, traffic management techniques could be deployed so as to "minimise the effects of temporary or exceptional network congestion provided that equivalent types of traffic are treated equally".

Copyright © 2014, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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