To say that Europe is about to undertake its biggest bet on the open internet is an understatement. And, unfortunately, it will lose it.
For anyone living under some cave all this time, back in March, Breton hinted that the Commission was working on a proposal requiring technology companies to contribute financially to telcos’ infrastructure costs. Since then, a series of reports that have been prepared on behalf of EU telcos have suggested this “fair contribution” to take the form of the “Sending-Party-Network-Pays” model, which has persisted their lobbying efforts since 2012. It is based on a simple premise: hand back the termination monopoly power to European telco champions.
Reaction to this has been swift from across the board: civil society, European regulators, mobile virtual network operators, technology companies and more than 30 experts and academics have objected, stating that there is no clear policy objective to reopen this particular debate. Yet, the Commission persists and it appears determined to proceed with some proposal.
In their response to the letter sent by more than 50 MEPs questioning this very reason for reopening the network neutrality debate, Commissioners Vestager and Bretton responded that this is not their intention: “the Commission is strongly committed to protecting a neutral and open internet, where content, services, and applications are not unjustifiably blocked or degraded in Europe, as well as on the global stage”. The SPNP model cannot ensure this and the Commission can insist as much as it wants but the fact of the matter is that once you recognize a termination monopoly right to the largest telco providers in Europe, all bets are off. As usual, the Commission wants both ways, but it is impossible. It is as impossible as its position on CSAM and encryption: we strongly believe in encryption but we ask companies to break it when we need it. This is not how things work.
The letter goes on to clarify that “any interpretation of the Commission’s work suggesting that we might be in the process of reversing this fundamental principle is completely misguided”. The Commission though provides zero insight on how then this whole thing would work. The only model that is on the table is the SPNP and we know how this story ends. The model will seek to make the internet look like more like a telephone network, the internet will persist, further regulation will be required, the market will become anticompetitive and Europe will be left behind. All the while, European users and consumers will suffer.
There is a sentence in the letter that “the issue of the digital players’ contribution to network deployment does not need to approached […] from the perspective of network neutrality. Again, though, no information is provided. How is it possible to talk about changing the way interconnection works in the internet and not talk about network neutrality? How is it possible to consider allowing commercial transactions to replace years of peering arrangements in the internet and not talk about network neutrality? Pretty simple, you cannot.
I don’t believe anyone is against having a conversation about the way the infrastructure ecosystem can be enhanced and strengthened. This conversation though cannot start with regulation; it cannot start with a model that has already been rejected. The only way to have a rational conversation about any of this is to go back to the drawing board, define the problem, lay out the framework, conduct a cost-benefit analysis and then proceed.
What saddens me is that once again the Commission fails to have an informed discussion and be transparent about any of this. To someone who was involved in the same discussions back in 2012 and then in 2015, this whole thing does not make sense. Yet, it is where we are. A Commission committed to satisfy the wishes of handful of legacy telelcom operators at my, and your, expense. Why else are they planning to open the consultation on December 21st – four days before Christmas?
Here's the letter.