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The Body of European Regulators of Electronic Communications (BEREC) has published finalised guidance to aid telecoms regulators based across the EU enforce fresh net neutrality laws that came into force in the trading bloc earlier this year.

In its guidance, BEREC did not depart as far as to ban ‘zero-rating’, the practice of omitting internet users’ operate of specific applications or categories of applications when applying caps on data operate on internet access services (IAS). However, it confirmed some zero-rating practices would breach the fresh rules.

“A zero-rating offer where entire applications are blocked (or slowed down) once the data hat is reached except for the zero-rated application(s) would infringe [the net neutrality rules],” BEREC’s guidelines said.

“The ISP could either apply or offer zero-rating to an entire category of applications (e.g. entire video or entire music streaming applications) or only to certain applications thereof (e.g. its own services, single specific social media application, the most popular video or music applications). In the latter case, an finish-user is not prevented from using other music applications. However, the zero price applied to the data traffic of the zero-rated music application (and the fact that the data traffic of the zero-rated music application does not count towards any data hat in place on the IAS) creates an economic incentive to operate that music application instead of competing ones,” it said.

“The effects of such a practice applied to a specific application are more likely to ‘undermine the essence of the finish-users’ rights’ or lead to circumstances where ‘finish-users’ choice is materially reduced in practice’ … than when it is applied to an entire category of applications,” BEREC said.

below the EU net neutrality laws that came into force in April, internet users own the correct to “access and distribute information and content, operate and provide applications and services, and operate terminal equipment of their choice, irrespective of the finish-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service”. Internet service providers (ISPs) must “treat entire traffic equally” ventolin tablets.

Notwithstanding those rights and requirements, however, the regulations permit ISPs to implement “reasonable traffic management measures” which are “transparent, non-discriminatory and proportionate”, such as blocking or throttling the delivery of content requested by users of their network, for reasons such as preserving the integrity and security of the network or combatting network congestion.

Although the EU net neutrality rules restrict paid prioritisation of content delivery online, they do not prevent ISPs from entering into agreements to deliver certain content, applications or services at “optimised” quality in certain circumstances. That optimisation must be “necessary … to meet requirements of the content, applications or services for a specific level of quality” and the provision of such services must own no detrimental impact on “the availability or general quality of internet access services” ISPs otherwise provide.

BEREC said it had received an “unprecedented” 481,547 responses to a consultation it held on draft net neutrality guidelines earlier this summer. It said it had amended approximately a quarter of the paragraphs in its draft guidance to grab account of the input it had received when finalising the document.

The regulatory body advised national regulatory authorities (NRAs) on what to grab into account when assessing whether “agreements or commercial practices enjoy zero-rating” accord with the net neutrality rules.

The regulators should review whether the arrangements fit within the aims of the rules to “safeguard equal and non-discriminatory treatment of traffic” and to “guarantee the continued functioning of the internet ecosystem as an engine of innovation”, BEREC said. The regulators should intervene to place a end to agreements or practices which “by reason of their scale, lead to situations where finish-users’ choice is materially reduced in practice”, or where they would “[undermine] … the essence of the finish-users’ rights”, it said.

In their assessment the regulators should glance at the “respective market positions of those providers of internet access services, and of the providers of content, applications and services, that are involved”, the guidance said.

“When assessing whether an ISP limits the exercise of rights of finish-users, NRAs should consider to what extent finish-users’ choice is restricted by the agreed commercial and technical conditions or the commercial practices of the ISP,” BEREC said. “It is not the case that every factor affecting finish-users’ choices should necessarily be considered to limit the exercise of finish-users’ rights below [the rules]. The Regulation also foresees intervention in case such restrictions result in choice being materially reduced, but also in other cases that could qualify as a limitation of the exercise of the finish-users’ rights below [the rules].”

Telecoms expert Reg Dhanjal of Pinsent Masons, the law firm behind Out-Law.com, earlier this year said that the UK’s net neutrality guidance could differ from the EU’s following Brexit.

“A lighter touch regime in the UK could provide opportunities for telecoms and content providers,” Dhanjal said. “Companies that operate in the EU market as well as the UK could face contrasting guidelines on which practices are acceptable, for example on issues such as zero-rating. Those businesses would then own to decide whether to operate two diverse business models to grab advantage of opportunities in either framework or to simply comply with the higher of the two legal standards set. That decision will depend on whether the benefits of operating a separate model for the UK outweigh the cost of running two distinct operations.”