DIGITALEUROPE response to BEREC public consultation for the evaluation of the application of Regulation (EU) 2015-2120 and the BEREC Net Neutrality Guidelines

The further hampering impact this has had on innovation and the ecosystem’s ability to experiment with new services is the indirect effect that most ISPs want to check with the NRAs whether new services are compatible with the Regulation prior to their launch. This is despite the fact that, as confirmed in the BEREC guidelines, the Regulation does not require an ex-ante authorisation in connection to commercial practices, traffic management practices and services other than IAS and that enforcement is ex-post based on real, not assumed, impact in the market. This side effect makes ISPs incredibly hesitant to think in terms of new services and new revenue streams, which in turn will be a huge barrier for 5G investment and the different layers of the value chain to meet customers’ demand and freedom to choose. This in turn undermines the business case for 5G as the use of these new technologies relies precisely on new forms of partnerships with content, application and cloud providers to integrate verticals, digitise businesses and bring new content, cloud and other offerings to consumers.

In the event of different interpretations of the guidelines, BEREC said it would be up to the courts to decide any appeals against national regulators’ decisions. One may question the objective of effective harmonisation across the Member States as many aspects of the enforcement depend on national laws and market conditions. We already see fragmentation across Member States, which could hamper the development of future cross-border services.

Utmost Importance For Internet, Content, Application And Cloud Service Providers To Innovate

Parts of the guidelines are ambiguous on how service providers will be able to innovate to continue delivering services customers demand.

Paragraph 112, for example, states what is today or tomorrow deemed to ‘qualify’ as optimisation may not be in the future. It is certainly true that, as networks and capacity evolve and expand, more services can be added to and offered over networks; however, it doesn’t follow from this that a service which has been optimised up until a given point no longer needs to be optimised for a specific end-to-end QoE. It is not clear on which grounds and evaluation criteria NRAs would base such a decision; furthermore, it is not clear what legal basis exists under the Regulation for taking such decisions. It should be made clear in the guidelines that services other than IAS, once on the market, can only be removed by the NRA if they are found to be in breach of the ex-post conditions of a negative impact on the general quality of IAS for other end-users.

The guidelines should also not refer to any specific technologies, nor should they try to pre-empt what a service other than IAS could be or take a restrictive approach on what ‘reasonable’ traffic management1 is. The risk is high in hampering research and innovation for the ICT industry and organising pan-European 5G trials to bring new services to market such as in the area of automated driving, goods delivered by drones or virtual reality for specific professional collaboration.