Research Notes

BEREC’s net neutrality process is a black box. Strand Consult fights for transparency against telecom regulators that like to make net neutrality rules behind closed doors

Strand Consult has followed the net neutrality debate around the world for years. Its team includes some of the leading experts, and we have published many reports on the topic. In this research note we present new research showing the lack of transparency in the process to implement net neutrality by the Body of European Regulators for Electronic Communications (BEREC) and how 8 European countries dominate the proceedings in an effort to realise regulation that exceeds the bounds of the EU law.

Transparency is essential in a democracy. Transparency is a foundational concept to the European Commission and European Parliament. The work of the European Union is translated in 24 official languages to maximize the transparency of the law for Europeans. Moreover European residents are ensured freedom of information under Article 15 of the Treaty of the Functioning of the European Union and thereby can access documents online, through databases, and by individual request. But while the law may be transparent, the EU delegates significant responsibilities to regulatory institutions including BEREC. In Strand Consult’s view, BEREC has fallen short of the EU standard.

The European Parliament established BEREC to oversee and coordinate the 28 national regulatory authorities of the EU and partner countries (Regulation No. 1211/2009). BEREC’s job is provide “transparency of its procedures and methods of operation” as well as expert knowledge. These inputs are important for the public to have confidence in the notion of an expert and independent telecom regulator. BEREC must perform its tasks “independently, impartially and transparently” (Article 1). Moreover Article 18 ensures that, “BEREC and the Office shall ensure that the public and any interested parties are given objective, reliable and easily accessible information, in particular in relation to the results of their work.”

Over the last year, Strand Consult has attempted to access information from BEREC about its net neutrality implementation process and its Net Neutrality Expert Working Group (NN-EWG). We have made multiple information requests for the minutes and materials of 43 meetings on net neutrality in 2016 and 2017. The response from BEREC for our transparency requests has been disappointing. Not only has the organization delayed responding to our requests for weeks at a time, any requests have been flatly denied, saying that they were either confidential to BEREC or irrelevant to us. Of the small amount of the information we did receive, much of it was redacted, removed, or hidden.

BEREC also assessed of the 29 reports submitted to the organization annually on the net neutrality implementation, a European Commission requirement, but refuses to make that assessment public. However Strand Consult has compiled and analyzed the 29 reports, offering statistics and conclusions in its own report: Net Neutrality in EU after 1 Year: Unintended Consequences for operators, content providers, and consumers.

In a letter to Strand Consult on March 1, 2018, BEREC President Johannes Gungl defended his organization on transparency noting BEREC’s Public Register where the “majority” of its 5400 documents are public and where non-public documents can be requested; BEREC’s annual plenary meeting which is public and livestreamed, public consultations, and the ability for the public to pose questions via Twitter or email during plenaries. Gungl also described various “stakeholder” engagements.

While these measures are commendable, they constitute the bare minimum for a transparent regulator according to the OECD, which also recommends regulatory impact assessments (RIAs) for major regulation as well as an independent auditing and accountability function for major decisions, two areas where BEREC fails.

As for BEREC making its very final meeting public, once all deliberation has concluded, this is not transparency. By the time BEREC conducts its plenary, all the key decisions have been made. Transparency is the ability to see into the decision-making process with insight to who and how decisions are made.

It is suspect that in the documents that Strand Consult received from BEREC, the identity of public servants and pre-selected stakeholders has been frequently redacted. It appears to violate the text, if not the spirit of the law. Privacy protections should not be abused to reject freedom of information, particularly when public servants, who are paid by taxpayers, are involved.

Moreover Strand Consult finds BEREC’s views of “stakeholders” highly suspect, as the criteria for their selection is not public. Strand Consult’s research uncovered that 6 of 14 BEREC’s official “stakeholders” had Google funding, including 3 of the 4 civil society organizations had funding from Google. The law allows the rejection of a freedom of information request to be overridden when it is in the public interest.

Of BEREC’s 43 net neutrality meetings that Strand Consult could identify during the period, 3 were public and 40 were secret. Of the 40 secret meetings, Strand Consult could obtain some minimal amount of information for 30 meetings. Information for the other 10 secret meetings was flatly denied on the basis that it wished to protect the identities of the participants and that disclosure would undermine BEREC’s decision-making process. This claim strikes at the heart of Strand Consult’s critique of BEREC over the years: it selects experts without providing transparent criteria; it makes decisions based on expert’s testimony without making the testimony public; and it claims net neutrality is vital and necessary without providing any academic evidence, cost-benefit analysis, or regulatory impact assessment. It is probably true that revealing the secret participants would undermine BEREC’s process because it would be patently clear that BEREC’s preferred implementation can’t be justified on the objective facts or evidence.

Based upon this experience and our research, Strand Consult can only conclude that BEREC is a black box, a system that can be only viewed with its inputs and outputs, while the internal workings are unknown. This reality contradicts the very purpose for which BEREC was established to make the internal workings of telecom regulation known. Moreover, BEREC’s black box is an ultimate hypocrisy of a regulator claiming to create “open internet” rules with transparency and disclosures for operators while it conducts its own process in secret. If the process is not transparent, we can’t trust the result.

BEREC’s system clearly falls short of the standard of the Federal Communications Commission (FCC) in USA which requires “ex parte” disclosures for all written and verbal communications between the FCC, Congress, and outside parties which concerns merits or outcomes of any FCC policy. The public database of ex partes, searchable by date, filer, proceeding number and so on, provides a valuable resource for journalists, civil society, and the public to see who attempts to influence FCC policy. Any phone call or conversation with an FCC staff that could influence policy must be publicly disclosed. If the FCC standard applied to BEREC, all 40 of the NN-EWG secret meetings and secret attendees would have been disclosed. Needless to say, there would be no need for Strand Consult to make freedom of information requests.

In the bigger picture, the rise of right wing parties in the EU shows that Europeans are increasingly skeptical of Brussels. This reflects in part the belief and experience of many Europeans that the branches of the EU government and its regulatory institutions are closed and opaque. The lack of transparency in BEREC is a symptom of a serious problem in the EU, and we hope that more people fight for transparency in Europe.

BEREC’s network neutrality implementation process 2016-2017
Strand Consult prefers a world in which regulatory officials conduct themselves in a transparent fashion.  Unfortunately, we had to fight for months to get scraps of information from BEREC. Here is the process that Strand Consult conducted to gather information for BEREC’s 43 meetings on net neutrality in 2016-2017. Bear in mind that there may have been more meetings that Strand Consult was not able to identify. In 2016, there were 21 meetings; partial information was granted for 13 and denied for 9. In 2017 there were 22 meetings; partial information was granted for 17 meetings and denied for 8.

Strand Consult includes the collected materials from these information request in its report Net Neutrality in EU after 1 Year: Unintended Consequences for operators, content providers, and consumers as well as the additional items below:

1. What happened in the 30 secret meetings held by BEREC’s NN-EWG
2. Why BEREC refused to provide information about its secret meetings
3. How BEREC offered a series of different reasons over time of why it could not provide the information requested
4. Why BEREC has granted access to some documents while denying others
5. Which 8 BEREC countries drive the net neutrality process and which have little to no involvement
6. Why the NN-EWG does not inform most BEREC member countries of its activities until the very end when it’s time to vote
7. Why Strand Consult has a better insight to NN-EWG than most national regulatory authorities in the EU
8. Which nations were not invited to participate in the NN-EWG on purpose
9. Why BEREC and NN-EWG will not disclose the identify and opinions of its preferred experts and stakeholders.
10. Which 7 of BEREC’s 14 official stakeholders in 2015 had funding from Google and Netflix and why there is a conflict of interest between BEREC’s alignment with 4 civil society organizations, 3 of which are funded by Google.
11. How BEREC promotes the capture of its public consultations by net neutrality activists and advocacies, including how BEREC officials publicly encourage their preferred stakeholders
12. How BEREC fails to meet the regulatory transparency standards of the US and the OECD
13. Why Strand Consult had to make freedom of information requests in Norway (a non-EU country) to understand what is going on in BEREC in EU.

Strand Consult’s report after year 1 of net neutrality shows a growing bureaucracy, promotion of bogus speed measurement methodology, and increasing surveillance of consumers by regulators. Strand Consult highlights the opportunities for operators to fight back, protect shareholder value, and protect consumers from government overreach.

Freedom of Information: How Strand Consult requests transparency
Strand Consult’s objective was to create transparency in relation to what has happened in BEREC’s net neutrality process from 1 January 2016 to 31 December 2017. At first, we went to BEREC’s website to see what material was made available to the public. The information can be found here: Net Neutrality Expert Working Group It became very clear to us that the website has not been updated in the period of 2014 to 2018 and that BEREC’s internal search engine BEREC does deliver relevant results.

Subsequently, we asked BEREC for access to documents from NN-EWG meetings. We requested any information related to the 43 total meetings including links, Press Releases, Event Invitations, Background Questions provided by BEREC, List of Attendees, both of National Regulatory Authorities and other organizations, Minutes, Background Materials, Presentations, and any other related materials.

As it turns out, BEREC need not provide information about its work if the party requesting does not know the exact date of the meeting or event in question. BEREC could have conducted 1000 meetings during the period that were not public, but no information would be disclosed unless the party requesting knew the actual date of meeting(s). It is nearly impossible to fathom how an ordinary person could figure out when a secret meeting took place. We suggested to BEREC that they could find the dates of the meetings by asking the heads of the NN-EWG, Frode Sorensen and Henk Don, but BEREC rejected that option, and Sorensen and Don ignored our request. So we had to find out the dates of secret meetings ourselves.

It turns out the Nordic countries have higher standards for transparency that the EU. Indeed, Sweden’s Freedom of Information law dates from 1766. Strand Consult requested Nkom, the Norwegian Telecom regulator, and requested copies of the airline tickets and hotel bills for NN-EWG Co-Chair Frode Sørensen for 2016 and 2017. We were able to recreate his travel schedule after obtaining copies of 70 airline tickets and associated hotel bills from 2016 and 2017. While the information is not comprehensive (e.g. it is possible that Sorensen conducted meetings in Oslo without travelling, for example, or by teleconference), it provides some insight to the working of the NN-EWG.

Strand Consult got partial access to the minutes of 30 of 43 meetings. Based on the minutes, we could create an overview of who participants and the national regulatory authorities (NRAs) involved. Among the 30 meetings, 8 countries emerge as activist in the process while 19 had little to no participation.

It is understandable that in a typical working group, there will be more active members than others, and one further assumes that the less active members “get up to speed” by reviewing background materials. That is how BEREC should work in theory, but it is not how it works in practice. Strand Consult found through its investigation that the activist countries effectively “hijacked” the process. In subsequent interviews with the less active countries, Strand Consult learned that the NN-EWG pushes through it preferences and does not inform the other nations of their proceedings until the agenda for the plenary was released. Many of these countries claimed never to receive updates from the NN-EWG, let alone meeting minutes or other materials. When it came time to approve BEREC’s implementation and policies, the other nation’s merely rubber-stamp what the EWG presents.

The less active nations could protest the aggressive NN-EWG, but we suspect that they don’t because they are already overwhelmed with other priorities and that the less active nations are afraid to challenge the activist countries for fear of retribution from the secret stakeholders of the NN-EWG.

By the time that BEREC gets around to conducting a public consultation, the consultation ending 25 April 2018, the important decisions have already been made. BEREC merely conducts consultations to create the appearance that it accepts public input. A number of operators have informed Strand Consult that participating in BEREC’s proceedings is a waste of time because BEREC ignores their input as they have already made their decision. BEREC just looks for information that conforms its pre-determined view. Consider as well that BEREC has already released a tender for a speed measurement tool, even though a cost-benefit analysis for its current net neutrality regime has never been conducted. Indeed, BEREC is already soliciting bids for a measuring tool before it even concludes its “public” consultation into whether the implement to date has been a success. This alone demonstrates that BEREC has already decided the direction it will go. The public consultation is just a formality. See this research note for further information.

Looking at the minutes of the secret meeting of March 14, 2017 we can see that an open source measurement tool is recommended by the secret stakeholders such as EDRi, a group on record to promote hard net neutrality. A link to EDRi’s most recent annual report shows that 62% of its funding comes from rich American foundations and corporations that lobby globally for net neutrality regulations that preference the Silicon Valley firms in their investment portfolios.

It’s unfortunate that BEREC is a black box when it comes to net neutrality and that a few countries have hijacked the process. There is something wrong when regulators can make rules about openness and transparency for the parties they regulate, but then they don’t hold themselves to the same standard.

Strand Consult is disappointed in how difficult it is to make a freedom of information request and doubt that ordinary citizens would undertake such an effort. BEREC doesn’t need to provide transparency because essentially no one is watching. But this apathy left unchecked likely grows into contempt. Voters are increasingly and understandably dissatisfied with Brussels.

BEREC has also failed to conduct a basic regulatory impact assessment for its net neutrality implementation, a key recommendation of the OECD for major policy issues. Without any documentation from BEREC, Strand Consult can only conclude that BEREC works on the basis of myth. For 9 months, Strand Consult has pressed the Norwegian regulator Nkom for proof for the position of the policy stance it takes. It has not yet provided any documentation.

Of the little empirical evidence on net neutrality, Strand Consult is one of the few contributors. We find that the policy has a disproportionate benefit to the giant Silicon Valley companies have benefitted handsomely, and coincidentally they have also funded its proponents. This represents a serious conflict of interest for the European Union which on one hand is prosecuting Silicon Valley companies for antitrust and data protection abuses, while on the other, rewarding them with price controls and favorable regulation with net neutrality.

The telecom industry has also failed to protect its shareholder interests. European operators and their interest organizations have not succeeded to participate in the process, to substantiate their arguments with academic research, and have a naive approach in how they view BEREC. It’s no surprise that there’s a €150 billion gap in European investment today. Clearly BEREC and Brussels do not care about shareholders.

If you want to get insight into the details that Strand Consult has collected through a long and heavy process, purchase the report Net Neutrality in EU after 1 Year: Unintended Consequences for operators, content providers, and consumers. Get the report so that you can participate intelligently in BEREC’s consultation closing April 25.

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