Research Notes

16 Questions that BEREC President Sebastian Soriano won’t answer on net neutrality

During a recent speech entitled The Promises and Perils of Net Neutrality, BEREC President Sebastian Soriano stated his relief that the EU made a net neutrality law and that BEREC was enforcing it. Soriano’s speech at the Digital-born Media Carnival in Montenegro appears to be a way to profile an obscure bureaucratic institution to media hipsters in an remote European city. Tellingly the event, sponsored by UNESCO and the Dutch government (smarting from a recent smackdown of their burdensome net neutrality law), appealed to “information explorers and digital rights enthusiasts” with a professionally produced festival “teaser” of revolutionary imagery of Occupy masks, protest, and burning effigies. Naturally Soriano mentions Larry Lessig and Tim Berners-Lee, celebrated figures on the Left for their views on net neutrality, and incidentally, financially supported by Google and the Ford Foundation. The subtext is that the EU regulation is cool, so cool in fact, that the revolutionaries no longer need to design the technologies of freedom themselves; they can leave all that to the government.  

Soriano explains that the net neutrality law “…at its core, lies the safeguard of several fundamental rights which are designing Internet as an infrastructure of freedom: protection of personal data, freedom of expression and information, freedom to engage in business and innovate, non-discrimination and consumer protection.” He likens net neutrality to the First Amendment of the USA, but fails to mention that the American net neutrality rules are being challenged as a very violation of the freedom of speech. Notably the case is brought against the American telecom regulator (FCC) by Dan Berninger, the co-inventor of VOIP whose HelloDigital platform which need prioritization to deliver high definition voice to social media comments is illegal under the current US framework.

Soriano concludes his speech by saying, “So BEREC action is not just paperwork” but it is fact largely that. The BEREC guidelines introduce a gargantuan regime of paperwork to address imaginary concerns, creating a Kafkaesque bureaucracy of social regulation. This was ostensibly to delight the “digital rights enthusiasts” that regulators such as Soriano and Nkom’s Frode Sorensen identify.  

Telecom regulators–who serve the public—have a duty to be transparent and accountable. While they have ideological preferences, they need to put those aside to deliver regulation without drama. Such a display pandering to discrete “circus” constituencies contradicts the view that BEREC helps ordinary Europeans, who overwhelmingly have never heard of net neutrality. Strand Consult, which has studied this issue in detail over a number of years, sent Mr. Soriano 16 questions to clarify his speech.

The BEREC Press team provided the standard, sanitized response which restates public information about the EU law and BEREC. Our questions related to specific decisions which BEREC claims it will make now as a result of the guidelines, for example to whom specifically BEREC is accountable, the cost of the regulatory process, and the empirical evidence for Mr. Soriano’s claims. Over a period of 30 days, we subsequently contacted BEREC five times in writing and once by telephone to get better answers to the questions, but were not able to get a further response from BEREC or Mr. Soriano. For the benefit of the 40,000 readers of this newsletter we include the exchange below.

16 Questions that BEREC President Sebastian Soriano won’t answer

We believe that net neutrality is an important issue with economic and social ramifications. The new BEREC President, Mr. Sebastian Soriano, held a speech at the “Digital-born Media Carnival” panel discussion “Promises and Perils of Net neutrality” – Kotor, 17 July 2017. In that speech he has a number of strong views, and it would be helpful to understand the academic and empirical basis for his statements.
We kindly appreciate your review of the following questions and your candid and thorough response.

  1. The EU net neutrality legislation does not contain the terms “net neutrality”, “zero rating”, or “specialised services”, and yet BEREC’s guidelines contain several pages of requirements stipulating how these practices are to be interpreted and regulated. The level of guidelines and expectation form a de facto kind of policy and regulation. What authority does BEREC have to make policy, what is its end goal with net neutrality, and how far will BEREC drive the policy? For example at what point will BEREC pronounce networks neutral and open? What is the objective, independently verifiable measure of success?
  2. In the 2016 consultation to develop BEREC guidelines, at least one third, if not half, of the commenters were not European citizens or residents. How does BEREC explain to whom it is accountable, if a large portion of the commenters are not European? For whom is BEREC making policy? Why do non-Europeans have equal ability to weigh in when they don’t live or vote in the EU?
  3. Many of the commenters to BEREC’s consultation masked their identity. How can European voters verify to whom BEREC is accountable if BEREC does not publish the identity and location of the commenters?  What proportion of the total comments are machine-generated? What percentage of the commenters have masked their identity?
  4. BEREC noted record breaking support to make net neutrality guidelines in 2016. Mr. Soriano declared, “I must confess that some of these tweets and messages that I received made me emotional… people asking me to “Save the Internet” and “Stop corporate capture…” I really wanted to respond to them.”However, according to a number of media reports and activists themselves, this activism was driven and funded by corporations such as Google and American foundations such as George Soros’ Open Society Foundation which takes credit for much of the comments. Why do these entities have a greater ability to influence BEREC and merit more of BEREC’s attention when the majority of Europeans – even a large portion who have never been on the Internet – did not participate in the consultation, and likely have never even heard of net neutrality?
  5. Google has funded almost all of the leading academics in support of net neutrality, particularly those whom BEREC consulted in a closed-door session to develop its guidelines in February 2016 in Rotterdam. BEREC also cites Google-funded academics to justify its guidelines and philosophy. How does BEREC account for its conflict of interest of using research funded by a company which the European Union has now charged for major antitrust violations?
  6. Given that BEREC’s position on net neutrality is so conclusive – that is to say, it does not accept any ambiguity about the policy, even though the most cited peer-reviewed papers on net neutrality say that the policy has ambiguous results – how does BEREC ensure that it does not commit regulatory errors? 
  7. Outside of two surveys that BEREC conducted on net neutrality (a survey of contract terms from 2011 and a study by WIK Consult), what empirical evidence does BEREC have justifying a problem so grave that it demands such detailed regulatory guidelines as BEREC imposes today?  If internet access was as poor as such guidelines suggest, it would seem that regulators are failing in their day to day duty to regulate networks and create a competitive market.
  8. If a problem has not demonstrated, what is the monetary benefit that BEREC delivers through these guidelines? How is it measured in euros annually? What is the cost of BEREC’s guidelines as measured in euros annual?
  9. Mr. Soriano asserts that equal access to the Internet provides trust and certainty. Which academic and empirical evidence proves this assertion?
  10. Mr. Soriano declares that the BEREC guidelines “…safeguard of several fundamental rights which are designing Internet as an infrastructure of freedom: protection of personal data, freedom of expression and information, freedom to engage in business and innovate, non-discrimination and consumer protection.” What academic and/or empirical evidence can you provide which prove that net neutrality regulation does these things, e.g. secures freedom of expression and information, provides freedom to engage in business and innovate. What other ways might these goals be achieved?
  11. Mr. Soriano states, “The end-to-end principle renders the Internet an innovation commons, where innovators can develop and deploy new applications or content without the permission of anyone else.” What academic and/or empirical evidence can you provide to demonstrate this assertion? Where is the empirical proof for the “end to end principle” and the “innovation commons”?
  12. Mr. Soriano states, “Permissionless innovation is important for citizens, individuals, but also for businesses, and most of all startups. We cannot conceive the new Google or the new Facebook without equal and free access to the Internet. Competition cannot exist without net neutrality.” What academic and/or empirical evidence can you provide to demonstrate this assertion?
  13. Mr. Soriano states, “This common good is put into question on a global scale by several issues. As Tim Berners-Lee puts it: “[the modern day web] controls what people see, creates mechanisms for how people interact, it’s been great, but spying, blocking sites, repurposing people’s content, taking you to the wrong websites – that completely undermines the spirit of helping people create”.  What does BEREC select Tim Berners-Lee as an authority to justify BEREC policy? Berners-Lee serves on the US based Ford Foundation which has an interest in effecting certain policies. Where does BEREC disclose its relationship with Berners-Lee? Has Berners-Lee provided a statement of his independence to BEREC?
  14. Each of the national regulators’ reports submitted to BEREC are unique and reflect different priorities with regard to net neutrality. Which country’s report will become the template?
  15. Mr. Soriano claims that the compatibility of zero rating with the Regulation depends very much on market conditions. The European Commission has prepared a definitive study on zero rating saying that it does not harm competition. Why does BEREC continue to make policy on the topic when the EU legislation does not stipulate doing so and the EU competition authorities say that it is not a problem?
  16. Regarding BEREC’s proposed use of crowdsourced methods to measure speeds, on which academic basis do you choose to select this measure to assess network quality? Why do you select speed as the only, if not most important, metric to be assessed?

If you have any questions about how we use this information or about Strand Consult, I am happy to speak with you.

Thank you in advance for your attention.

John Strand,
CEO, Strand Consult

Mr. Soriano didn’t respond to our questions. We are disappointed.  
Given Soriano’s bold statements, we gather that they are based on things he can document and that he can justify his interpretation of the EU law and the regulatory path on which he is taking the EU. Therefore we find it strange that the chose not to respond to the 16 relevant and serious questions. However it is not the first time BEREC ignored Strand Consult’s request for transparency.

Here is the response we received from BEREC’s press team.

Dear Mr Strand,

Thank you for your email and for your interest in the work of BEREC. You raise numerous questions and, whilst many of them are quite specific, they can be addressed together in a thematic way.

For instance, many of the questions relate to the role of BEREC’s Guidelines on net neutrality and the process that was followed while drafting and consulting on these Guidelines. In several of these cases, the questions raise issues that have already been addressed by BEREC in its
Guidelines or the accompanying Consultation Report. In some other cases, the questions appear to be related to the role of the Guidelines or of BEREC’s role in adopting the Guidelines, or more generally, its remits, tasks and its relationships with other European institutions as provided in the European legislation.

BEREC acts as the European body which brings together national regulatory authorities (NRAs) in the field of electronic communications. BEREC is informed by the knowledge, experience and technical expertise of its constituent NRAs. The
Regulation establishing BEREC provides that it should contribute to the development and better functioning of the internal market for electronic communications and provide advice to both the European institutions and NRAs. According to the established roles and responsibilities, the NRAs and the European Commission shall ‘take utmost account’ of any opinion, recommendation, guidelines, advice or regulatory best practice adopted by BEREC.

With regard to the specific issue of net neutrality, Article 5(3) of the
Regulation EU 2015/2120 sets the rules as defined by the co legislators and requires BEREC to issue guidelines for the implementation of NRAs’ obligations under the Regulation.

After meetings with European-level stakeholders in December 2015 and a workshop with high-level academic, legal and technical experts in February 2016, BEREC launched a six-week public consultation on the draft Guidelines. The public consultation was advertised via social media, with a specially organised press event before the launch of the consultation. A number of NRAs also organised workshops at national level. The number of contributions received was unprecedented for a BEREC consultation and came from diverse categories of respondents: civil society, public institutions and independent experts, ISPs, content and application providers and other industry stakeholders. Having processed the contributions and thoroughly evaluated the arguments, BEREC updated about a quarter of the paragraphs in the final Guidelines. As with all BEREC consultations, the final decision was based on the available evidence and the validity of the arguments made, rather than on the identity of the respondents. BEREC also published a report on the outcomes of the consultation, which explains how the arguments were taken into account. This document also addresses some of the issues which you have raised in your questions.

BEREC’s work on the issue of net neutrality is continuing and there have been two further consultations that have recently closed and which are relevant to this issue and to the questions you raise. One of the consultations was on a
Regulatory Assessment Methodology and the other was on IP interconnection in the context of net neutrality. BEREC is currently processing the responses and updating the documents and will be publishing the outcomes soon. Additionally, in order to inform EU citizens on the issue of net neutrality and on BEREC’s Guidelines, we have created a special section on our website:

Moreover, after each of BEREC’s Plenary Meetings, BEREC organises a public debriefing on the outcomes of the meeting. You may also raise questions on this occasion via twitter #BERECpublic.

Best regards,

BEREC Office
Press team

BEREC has a duty to be accountable and transparent to all Europeans, not to pander to preferred elites.
The BEREC Press team response simply restated the documents to which we referred. It is troubling and disingenuous that Soriano should make a solicitous speech to a select audience (many whom are not even European) and then ignore questions that relate to costs and benefits to real Europeans.

Strand Consult has published objective knowledge about net neutrality, including an actual impact assessment of the rules across 50 countries and an in-depth comparison of the rules in the EU. Simply put, Soriano grandstands on supposed “rights” that the EU law confers, but the law does not even state the term “net neutrality”, let alone enumerate the rights that Soriano claims it does. It remains to be seen how the EU law will be challenged, and EU regulators have been struck down for over-interpreting the statute.  The academic and empirical evidence is not on Soriano’s side.

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