On 27 October 2015, the European Parliament adopted the new Telecoms Single Market legislation without a number of proposed amendments relating to net neutrality. As a result, while the Regulation requires Internet service providers (“ISPs”) to “treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment,” it provides for the following exceptions to this principle:
ISPs may offer “specialised services” (e.g., IPTV, high-definition videoconferencing and healthcare services) to the extent that this does not have an impact on the general Internet quality.
- ISPs may decide not to count capacity used in connection with certain sites or applications towards a consumer’s capacity usage (“zero rating”), subject to a non-discrimination obligation.
- ISPs may implement reasonable traffic management measures based on the “different technical quality of service requirements of specific categories of traffic.” These measures should not be based on commercial considerations.
- ISPs will be able to impose traffic management measures to prevent “impending network congestion”.
The four rejected amendments related to these exceptions: network discrimination, equal treatment of all Internet traffic, the potential role of ISPs as gatekeepers, and the use of traffic management other than in connection with congestion.
The Body of European Regulators for Electronic Communications now has nine months to develop guidelines relating to the implementation of the new rules for national regulators. Implementation of the Regulation may be challenging. For example, there is legislation prohibiting zero rating in the Netherlands and Slovenia that is likely invalidated by the Regulation.
Finally, the legislation also confirms the end of mobile roaming charges (subject to a “fair use” limited) across the European Union by 15 June 2017. Before that date, roaming charges for outgoing and incoming voice calls, text messages and mobile Internet use will be capped as of 30 April 2016.