This public consultation seeks responses to specific questions on transparency, switching and certain aspects of traffic management which emerged as key issues in the net neutrality debate that has taken place in Europe over the past years.
The EU regulatory framework for electronic communications as reviewed in 2009 enshrines as a policy objective the end-users? ability to access and distribute information or run applications and services of their choice. It also modernises the provisions regarding ease of switching, transparency and quality of service, and gives National Regulatory Authorities (NRAs) tools to deal with net neutrality issues. Under the Universal Service Directive, NRAs dispose of a competence to set minimum quality of service requirements and are also empowered to settle disputes between market players.
The Commission launched a broad public consultation on ?The open Internet and net neutrality in Europe? in summer 2010 followed by a joint summit with the European Parliament in November 2010. In April 2011 the Commission adopted its Communication ?The open Internet and net neutrality in Europe?, and on 29 May 2012 the Body of European Regulators of Electronic Communications (BEREC) published the results of its traffic management investigation undertaken upon the Commission?s request. In addition, BEREC has looked into quality of service, transparency, competition issues and IP interconnection in the context of net neutrality. BEREC further issued a report on best practices to facilitate consumer switching, where it concluded that for competition to be able to deliver effective outcomes for consumers it was essential to ensure transparency for consumers and called inter alia for a minimisation of unnecessary switching costs and barriers.
The BEREC Traffic Management Investigation results provide a good overview of traffic management practices in Europe. The most frequently reported restrictions are the blocking and/or throttling of peer-to-peer (P2P) traffic, on both fixed and mobile networks, and the blocking of VoIP (Internet telephony) traffic on mobile networks. Over 400 operators participated in the investigation which showed that at least 20% of all Internet users, and potentially up to half of EU mobile broadband users, have contracts that allow their Internet service provider (ISP) to restrict services like VoIP or P2P. According to the BEREC report among those fixed and mobile operators with contractual restrictions on P2P 96% and 88%, respectively, enforce them technically. Contractual restrictions on VoIP are technically enforced by more than half (56%) of the mobile operators with such restrictions in their contracts.
In the light of the BEREC results, the Commission concluded that the problems identified warrant targeted action to safeguard and empower consumers. Moreover, all market players need more regulatory certainty to promote the efficient use of networks, infrastructure investments and the development of new business models. The Commission considers regulatory intervention in competitive markets as inappropriate unless it is the only way to solve problems. In a competitive environment consumers are able to change their operator if the latter does not provide the wanted services or restricts their Internet access. For competition to become effective consumers need to be well informed about the characteristics of the services they are offered and they or at least a sufficient number of them to constrain a given operator ? must be able to easily switch between services and service providers.
In order to allow consumers to have access to Internet service offers that truly meet their needs and to enable them to effectively exercise their choices, the Commission is envisaging policy measures addressing the issues of transparency, switching and certain aspects of traffic management, including deep packet inspection (DPI). DPI technologies examine different layers (header and content) of data packets to decide whether a packet may pass or needs to be routed to a different destination. DPI can be used to protect the network and users against malware (viruses etc.) but also to block or slow down other data packets. Union-wide guidance on these issues would avoid diverging approaches in the Member States and a fragmentation of the Digital Single Market.
In view of the previous extensive consultation this consultation focuses on factual information and best practices regarding the relevant issues of transparency, switching and traffic management. The responses from stakeholders are crucial input into the Commission?s future actions in this area.
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