Net Neutrality: An Incyte Perspective responding to recent developments in the European Union

Abstract

The road to net neutrality within the European Union (EU) has been slow and winding. However, a major milestone was reached in August 2016 through the publication of the BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Rules. These Guidelines, which must be given the “utmost consideration” by national regulators, provide the EU’s first detailed and unambiguous regulatory commitment to net neutrality, and are carefully crafted to balance the needs of content providers and network operators. This extended article explores the scope of the net neutrality principle as understood and applied in a number of jurisdictions. The approach in the EU is contrasted with the approaches of the Federal Communications Commission (FCC) in the United States (US) and of a number of other countries. Although there are some constants that recur for net neutrality in all of the countries examined, there remain a variety of specific local connotations.The article indicates that the question, “What is net neutrality?” will continue to be asked and continue to be very apposite for some time. The EU approach, with the BEREC Guidelines, will likely be central to a more harmonised approach worldwide.It also argues that the new EU framework is likely to be even more influential than its highly publicized but politically fractious US equivalent. The EU approach to net neutrality will find greater favour among developing countries, as it provides sufficient flexibility to offer network investment incentives whilst retaining appropriate competition and user safeguards. As with the earlier EU ex-ante regulatory frameworks for market analysis and cost-based interconnection, the BEREC paper paves the way for continued export of best practice regulation from the EU to the rest of the world. However, there are issues that demand caution in how the BEREC approach might be implemented.The authors have extensive experience as consultants and commentators on telecommunications industry and regulatory issues in many countries. David Rogerson and Jim Holmes are founding partners of Incyte Consulting, located in Falkirk (Scotland) and Melbourne, respectively. Pedro Seixas is a Principal Associate of Incyte Consulting located in Frankfurt.