14 April, 2022

ETNO-GSMA-GIGAEurope response to the public consultation on the draft BEREC Guidelines on the Implementation of the Open Internet Regulation

ETNO, the GSMA and GIGAEurope, who represent the telecoms sector in Europe, welcome the opportunity to comment on BEREC’s Draft Guidelines on the Implementation of the Open Internet Regulation. It is a crucial milestone to implement and enforce Regulation 2015/2120 on the Open Internet, especially in light of the European Court of Justice (ECJ) rulings concerning the interpretation of the specific Articles of the Regulation.

The GSMA, ETNO and GIGAEurope hope the following detailed comments can serve as a constructive contribution to BEREC’s deliberations on the draft Guidelines on the Implementation of the Open Internet Regulation.

Please find below a summary of the main issues we would like to raise in the context of this consultation:

  • We call on BEREC to ensure that the updates to the Guidelines remain within the scope of the interpretation provided by the ECJ decisions and do not create additional rules not embedded in those decisions;
  • To that end, we call on BEREC to make the distinction in the Guidelines between zero-rating practices based on commercial considerations and zero-rating practices that are not based on commercial considerations and/or applied to partner applications;
  • We urge BEREC to ensure there is an effective carve out that allows for zero-rating of applications that are used for the benefit of EU citizens. This could be achieved by BEREC making the distinction in the Guidelines between zero-rating practices based on commercial considerations and those which are not;
  • We urge BEREC to maintain a customer friendly approach to data purchasing, which gives customers the ability to explore the internet in a customer friendly and hassle-free manner. The possibility to purchase additional data allowance should not be considered as a ‘commercial practice involving traffic management’, but as a means to secure ‘free and open’ internet access as such for customers;
  • We call on BEREC to take into consideration the expected operational implication and costs the changes to the Guidelines introduce in relation to existing offers that have already been validated by national regulators (i.e. burden in terms of time, resources, and the potential risk of losing customers). It is important for operators to have enough time to process these changes and as such an adequate transitional period and a flexible approach to implementation during this transition that takes into account specific
  • We call on BEREC to ensure that all National Competent Authorities (NCAs) act In addition, we call on NCAs not to prejudice the outcome of the consultation process by taking early action; and to act in a harmonised manner once the final Guidelines are established.

Overall context

 The ECJ rulings have been a cause for concern for operators across Europe, given that zero-rating offers are currently available and active in almost all EU markets, and bring significant benefit to consumers and society at large. It is important not to underestimate the significant uncertainty caused to consumers, operators and indeed national regulatory authorities by these unexpected rulings. The situation is indicative of a deep underlying and perpetuating lack of clarity caused by the shift in interpretation of the Open Internet Regulation (OIR).

We would like to restate that a more restrictive interpretation of the Open Internet Regulation that would go well beyond the three judgments of September 2021 would alter the spirit of the norm, risk to unduly reduce the prospects for innovation and new revenues for the telecommunication sector and increase constraints on internet service providers (ISPs) while the other internet actors – acting elsewhere in the value chain - are not subject to such constraints. This, in fine, would increase even more the gap between ISPs and other internet actors in their ability to innovate for the benefit of consumers.

With this in mind, BEREC and NCAs should provide for clarity, legal certainty, predictability and an efficient implementation of the Open Internet Regulation. NCAs should abide by the adopted Guidelines to the maximum extent possible. The core principle and rationale of the Guidelines is to ensure a harmonised approach towards such important issues as setting the future framework for zero-rating price models. BEREC and NCAs should continue to ensure that the Open Internet Guidelines also support innovative services that can ultimately benefit European citizens and businesses.

This is particularly true when it comes to new technical features such as those enabled by 5G networks and network slicing. Such technical features will allow operators to provide consumers with the best products and services allowing (groups of) consumers to benefit from mobile networks that can be tailored to their specific needs and expectations. Thus, in order to ensure a wide and beneficial deployment of this technological innovation, the reviewed Open Internet Guidelines should take this aspect into account, providing a futureproof and legally secure framework that allows for the continued possibility of innovative service offerings based on 5G – in line with the intentions of the European legislators – under the OIR: promoting innovation and a market driven technological network evolution as well as fostering the adoption of 5G solutions need to be incentivised.

We would also like to emphasise the expected operational implications and costs that the new provisions introduce in relation to existing offers that have already been validated by national regulators (i.e. burden in terms of time and resources). The change in approach will also lead to contract modifications, as a result of the removal of services, which may lead to situations where customers theoretically have the opportunity to leave the operator/contract. It is important for operators to have enough time to process these changes and as such an adequate transitional period and a flexible approach to implementation, that takes into account specific situations, is required during this transition.

ETNO, the GSMA and GIGAEurope would like to restate that the revised BEREC Guidelines should take stock of the rulings rendered by the ECJ, while fully respecting the limits of these rulings. BEREC should in any case avoid extending the scope or interpretation of these rulings.

ETNO, the GSMA and GIGAEurope would like to further elaborate on that below.


Read the full text at the link below:

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