[ NNSquad ] Submission to NN Squad - EU net discrimination clause analysis

[Mike Kiely <Mike.kiely@pnsol.com>]

Lauren,


I would really welcome your readers re-action to this comment on the net 
discrimation clause. The Blog is here : 
http://broadbandbritain.spaces.live.com/blog/


       Amendment 22 - a net discrimation clause

The EU Telecoms package was pushed to conciliation on May 6th. There was 
a number of concerns on Internet freedom. The one which MEPs did not 
allow to pass was the notion that our internet connection could be cut 
off without a proper legal review if it was suspected that we were 
downloading pirated material. This is known as graduated response, in 
France it is the proposed Hadopi law and more memorably as the Carla 
Bruni (a song writer with copyright) amendment. The MEPs stood firm and 
forced the package into conciliation.
MEPs were also unhappy but allowed to pass a much amended and fought 
over net discrimination clauses - also known as the AT&T amendments and 
the wiki amendments, so called as UK advisors were shown to have cut and 
pasted material on network management into the amendments. The following 
amendment 22 (one of the clauses) has been adopted by Parliament and may 
or may not get included in the conciliation process after the Euro 
elections on June 4th. The worst effects have been mitigated against by 
a general declaration that citizens have a right of access to the 
internet, regulators are obliged to deal with any non-discriminatory 
network managements practices under competition but this is still a 
mess. It still shows the strong traces of the authors (Malcolm Harbour, 
MEP) original view that access to the public internet could be regulated 
in the same manner a Cable TV service is regulated. He believed the 
internet experience should be a function of competitive market forces 
only, and operators can limit our access as long as long they put any 
such limitations in the small print. Competitive forces alone would keep 
the market pure.
As adopted in the Universal Service and Users Rights Directive it 
currently states;
(22) /*End-users should be able to decide what content they want to send 
and receive, and which services, applications, hardware and software 
they want to use for such purposes, without prejudice to the need to 
preserve the integrity and security of networks and services. A 
competitive market will provide users with a wide choice of content, 
applications and services. National regulatory authorities should 
promote users' ability to access and distribute information and to run 
applications and services of their choice, as stated in Article 8 of 
Directive 2002/21/EC (Framework Directive). */Given the increasing 
importance of electronic communications for consumers and businesses, 
users should/* in any case */be fully informed of/* any limiting 
conditions imposed on the use of electronic communications services by 
*/the service and/or network provider â./* Such information should, at 
the option of the provider, specify the type of content, application or 
service concerned, individual applications or services, or both. 
Depending on the technology used and the type of limitation, such 
limitations may require user consent under Directive 2002/58/EC 
(Directive on privacy and electronic communications). */

I am not sure this is of use to anyone. As a user it suggests the ISP 
gets to determine what I see and do not see on the public Internet. But 
elsewhere it states Internet access is a fundamental right, and 
non-discriminatory traffic practices could be dealt with under 
competition law, which is no protection for a user.
Given the nature of the Internet as Digital commons and our right to 
access to it, then any natural limitation will be due to the nature of 
the connectivity provided, the up to speed, the throughput, throughput 
at peak period, and the measured loss and delay characteristics of the 
line. Our limitation is dictated by the physics of the connection, the 
constraints due to sharing the backhaul, and the operators hidden 
network planning rules.

In the context of accessing the public Internet there should be no 
notion of limiting access to content, or applications. Restrictions by 
content or application means the customer is not getting access to the 
public Internet, or gaining full use of the data connectivity available. 
Such services are of course possible, but should not be labeled 
Broadband Internet services.

The market does not in this context provide a wide choice of content. 
The content and applications are on the public Internet. We are buying 
access to the public internet which can be bundled with applications 
like email and anti-virus software. The market should provide 
competitive data transport services, which will differ from supplier to 
supplier.

This would suggest 22 should be amended to read ,

*End-users have a right to decide what content to send and receive, and 
which services, applications, hardware and software they want to use for 
such purposes, without prejudice to the need to preserve the integrity 
and security of networks and services. A competitive market will provide 
a choice of access to the Internet. National regulatory authorities 
should promote users' ability to access and distribute information and 
to run applications and services of their choice, as stated in Article 8 
of Directive 2002/21/EC (Framework Directive). Given the increasing 
importance of electronic communications , and especially access to the 
public Internet; users should be fully informed of any limits caused by, 
1) the physics of the network (headline speed), 2) the operators network 
planning rules (quality measures, and peak period allowances and 3) the 
non-discriminatory congestion management rules needed to manage busy 
periods. Such information should be transparent to the user prior to the 
point of purchase and in the terms and conditions . Given networks are 
both contended and congested at peak periods operators should offer 
their customers the ability to prioritise time sensitive applications so 
a consistent user experience is maintained for their important 
applications during busy periods.*

The objective is get operators to expose the full potential of the 
available connectivity, so consumers can see what resources (and it's 
limits) are available to them, thus optimising the opportunity to do 
more with the available connectivity.

One of the reasons amendment 22 was adopted is perhaps they had nothing 
better to replace it with.

If you can improve the above, please do so and share it.


Kind regards

Mike Kiely