EU, US Net Neutrality Rules Seen a Lot Alike, With Case-by-Case Decisions Key
The EU and U.S. adopted similar net neutrality frameworks, but "the devil will be in the details" of how they resolve disputes that emerge, said Sidley Austin attorney Jonathan Nuechterlein Thursday on an FCBA panel. Andrea Glorioso, a digital economy counselor for the EU Delegation in Washington, outlined European processes and an advisory body's recent "common sense" net neutrality guidance to national regulatory authorities (NRAs), including on ISP "zero-rating" data practices, some of which would be more problematic than others. Dan O'Connor, vice president-public policy, said the Computer and Communications Association supports the "sensible" net neutrality guidance the Body of European Regulators for Electronic Communications (BEREC) issued Aug. 30 (see 1608300002).
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Glorioso said the BEREC guidelines aren't binding on the NRAs of the EU's 28 member-states, but they're "very important." He said the BEREC is composed of the heads of all the NRAs and other officials, and works to achieve as much consensus as possible so individual NRAs won't have reason to be obstructionist. The BEREC guidance implements the "open Internet" provisions of the EU's telecom single market regulations, which are binding, and can be used by parties in court to seek redress of grievances, he said.
There are a lot more comparisons than contrasts between the net neutrality rules of the EU and U.S., said Nuechterlein, who until March was FTC general counsel and also has held senior positions at the FCC and DOJ. He said one difference is the FCC net neutrality order reclassified broadband internet access service under Title II of the Communications Act, which is the main focus of industry petitioners challenging the order in court. But on the net neutrality substance, there's an "extraordinary degree of consistency" between what the EU/BEREC and FCC have done, he said, noting he was speaking for himself, and not his firm's clients, some of which are ISPs involved in the litigation.
Both the EU and U.S. have bright-line rules prohibiting ISPs from blocking or degrading Internet traffic, subject to reasonable network management exceptions, Nuechterlein said. He said they both also prohibit paid prioritization, though the FCC said it would consider waivers. But the bright-line rules target business practices that major U.S. ISPs weren't seriously considering, he said. He said general Internet conduct regulation is where "the rubber hits the road," requiring regulators to deal with issues case by case. Both the EU and U.S. allow specialized services, where some categories of Internet service can be given preferential treatment, he said. Both also took case-by-case approaches to interconnection and sponsored-data issues, he said. The key will be in how the NRAs and FCC deal with particular issues, such as sponsored-data and zero-rating practices, which he called similar. He said the FCC should follow antitrust principles.
O'Connor said there are concerns the BEREC's specialized service guidance could become a loophole to bypass safeguards against discriminatory behavior. He said his personal view is the group found an appropriate balance, allowing such services as linear television, high-quality mobile voice and remote medical services. He said the BEREC's zero-rating guidance provided a "sliding scale" of examples that raise more concern to less concern, while retaining flexibility.
Glorioso said zero-rating guidelines were perhaps the most controversial part of the BEREC's decision, and certainly generated the most discussion. He said zero-rating plans that allow consumers to bypass data restrictions are less problematic if they target broad categories of applications, but cause more concerns if they target particular applications or involve deals between big players in a concentrated market.