On Tuesday 30 August, the EU Telecommunications Regulator (BEREC) published its guidelines on how to implement the regulation on Net Neutrality of 2015. The European DIGITAL SME Alliance already welcomed this regulation for its commitment to the best-effort-principle. In spite of the principle, though, concerns were raised that several ambiguities in the regulation would allow operators to bypass net neutrality rules and thus exploit their monopoly position.

DIGITAL SME already stated in 2015 that a prioritisation of special categories of data was acceptable, as long as no further discriminations were permitted among different data within this group. Fortunately, “zero-rating” is restricted by the new guidelines. “Zero-rating” priority can for instance be applied to a whole group of applications, such as music streaming services, but not for one specific service only.

However, the area of specialised services still contains some loopholes: Internet service providers can prioritise certain services, if they need a higher Quality of Service (QoS). In telemedicine or road transports, this is reasonable and necessary as to ensure real-time transmission and low reaction rates. However, instead of specifying which applications are in need of such prioritisation, the guidelines just refer to the principle of proportionality. “This creates an opportunity for misuse. The Internet service provider can prioritise specialised services or apply „zero-rating“ without prior examination by the national regulator, which in case of violation can only intervene afterwards. Worryingly, limited staff capacity in many national authorities may lead to long waiting times for examinations.” warns Oliver Grün, president of DIGITAL SME. “Not only we need to establish a principle, but also its timely enforcement. Time is essential for economic operators, especially Small and Medium sized Enterprises that typically do not have sufficient reserves to maintain their operations under unfair competitive conditions for an indefinite period of time.”

Just as the regulation on net neutrality from 2015, the guidelines are another step in the right direction and an important attempt to clarify the loopholes that are a threat to net neutrality. Yet, this attempt only partially succeeds: Specialised services and „zero-rating“ are still not excluded and unclear legal terms will require interpretations by the regulatory authorities. Moreover, different interpretations may lead to different implementations of the same regulation in the Member States. „National authorities have a great responsibility to adopt an SME friendly approach by ensuring fair competition on the market. Appropriate procedures and personnel resources should be built up, in order to provide timely clarifications on issues and thus avoid market distortions. Otherwise, we fear that unfair competition may force Small and Medium sized Enterprises out of the market despite their innovative products and services“ explains Grün.