Research Notes

CASE: BEREC tenders a net neutrality measurement tool before it completes its evaluation of the net neutrality implementation. This proves that BEREC’s “public consultations” are just formalities. BEREC collects consultation responses so it can solicit more support for its pre-determined outcomes.

Many policy decisions by the Net Neutrality Expert Working Group (NN-EWG) of Body of European Regulators for Electronic Communications (BEREC) are made before all BEREC member nations meet and before public consultation are ever conducted. While the premise of a sub-committee is to investigate policy options for the larger body and to provide recommendations for discussion, the goal of the NN-EWG is to prioritize net neutrality as a key activity for all of BEREC above other domains. This can be observed in net neutrality taking up about one-fifth of BEREC’s 2018 Work Program and Net Neutrality being noted on the masthead of the BEREC website. No other BEREC domain is mentioned even though BEREC does significant work in 5G, spectrum, market access, and market definition and so on.

Most EU regulators already have a speed measurement regime in place and report that operators perform above 95% of the expectation. But the NN-EWG wants to implement an EU-wide Net Neutrality (NN) Measurement Tool ostensibly to measure broadband speeds and traffic management. The NN-EWG hopes to automate the net neutrality process with so-called open and crowdsourced tools, so that BEREC itself need not undertake investigations and so that it can increase the number of “violations” and resulting fines on operators.  BEREC can use such an automated regime to prove to policymakers that the regulation and BEREC’s oversight is justified.

Whether the underlying measurements of such as tool are accurate is another matter. The French regulator ARCEP in its State of the Internet report noted that crowdsourced or open source measurements could vary by 8-fold. Indeed, such tools do not measure network quality; they only measure the device on which they are deployed. The definitive study of such tools was performed by United Kingdom regulator Ofcom which concluded that no tool was accurate. BEREC ignored the UK report altogether and continues to demand an open sourced solution.

Another problem with automated measurement is that it potentially violates Europeans’ privacy. BEREC’s goal is to conduct pervasive measurement of all digital communications networks to detect net neutrality violations. Europeans would not have the option to consent to such measurement, and indeed, governments are exempt from the General Data Protection Regulation on data processing. The invasive nature of monitoring networks and BEREC’s desire to implement always-on surveillance likely amounts to an invasion of users’ privacy and violation of provisions 8, 9, and 10 of the European Convention on Human Rights. In essence, the NN-EWG promotes a measurement regime based on bogus data and which puts Europeans’ privacy at risk.

To gather input to this possibility, the NN-EWG held secret stakeholder meetings, including one on 14 May 2017 with EDRi, La Quadrature du Net, and the European Broadcasting Unit to hear their recommendations. These groups advocated for “open source measurement tools” to determine whether operators violate the EU law and BEREC’s guidelines. These representatives were not scientists, engineers, or statisticians who have technical knowledge about such tools or even representatives from telecom operators who are to bear the cost and implementation. Instead BEREC asked net neutrality policy advocates and lawyers how they think telecom operators should be regulated. Essentially this discussion confirms for the NN-EWG the sort of regime that can be maximized for the public relations value of the regulation for the advocacy organizations and BEREC.

Reviewing the other BEREC consultations shows that BEREC does not engage in any kind of objective, evidence-based cost benefit analysis (CBA) or regulation impact assessment (RIA) as recommended by the OECD.  For example a CBA or RIA would require that BEREC investigate alternative means to achieve the same goals. It could assess the value of maintaining the status quo versus a variety of regulatory options and the various pros and cons. At the very least, an analysis could be performed on the current path to make a baseline for cost and benefits.

But BEREC does not work that way.  It makes a decision, and then it opens the discussion for public comment, knowing full well that it will reject the comments that don’t support its preconceived conclusion. BEREC’s consultation are designed with sculpted questions in which the respondent can only suggest that more regulation be performed. There is never an option that allows the respondent to say that there is too much regulation or that it is misguided.

From 7 June- 5 July 2017, BEREC conducted a public consultation on BEREC’s overall Strategy 2018-2020 including its Net Neutrality Regulatory Assessment Methodology. On 5 October 2017, BEREC released its report on the Regulatory Assessment Methodology. One the same day, BEREC published its net neutrality measurement tool specification.

From 21 March-11 May 2018, BEREC posted an Open Tender for the development and implementation of the Net Neutrality (NN) Measurement Tool.  In parallel over roughly the same period (March 14-April 25, 2018), BEREC conducts a Public Consultation for the Evaluation of Application of Regulation (EU) 2015/2120 and the BEREC Net Neutrality Guidelines. This consultation asks a number of rhetorical questions (see sections D and F) designed for “stakeholders” to confirm that BEREC is going in the right direction, and indeed, that it should do more to regulate.

There is a saying in policy circles: If you are not at the table, you are on the menu.  It means if you are not designing the regulation yourself, you have the most to lose. It is clear that European telecom associations ETNO and GSMA were locked out of BEREC’s process long ago, and they are ineffective to make their positions known. BEREC and the NN-EWG has made better friends with net neutrality advocacies which can drive visibility and participation to BEREC’s pro-regulatory policy. It’s unfortunate that the shareholders who stand to lose value on their investment have no representation. The €150 billion gap in European investment shows that BEREC and the EU government does not care about shareholders.

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