Flexibility or Debilitating Uncertainty From New Proposed EU Net Neutrality Rules?

Sometimes, it is sensible not to create hard and fast rules to cover circumstances that are expected to be novel. In other cases, the same stance can create such uncertainty that innovators will be dissuaded from trying to create new things.

New proposed rules on network neutrality are likely to cause just that problem.

As a practical matter, network neutrality is based on a principle that “providers of internet access services shall treat all traffic equally,” a concept initially seen as primarily relating to the notion of “best effort access only,” with no prioritization of packets by sender, receiver, terminal or access network.

Even if some think ISPs--or consumers, app providers and ISPs--should be free to create access services with quality of service measures, the default “best effort access only” principle is at least clear.

Other newer proposed principles are not so clear.

The net neutrality concept has been broadened, in some quarters, to rules about zero rating of apps or data received by a user or customer.

New proposed regulations  by the Body of European Regulators for Electronic Communications (BEREC) do not necessarily create clarity on that matter.

The guidelines prohibit zero-rating in circumstances "where all applications are blocked or slowed down once the data cap is reached," though the document also acknowledges that some cases are "less clear-cut."

Therein lies a problem. The proposed rules do not clearly permit or outlaw zero rating. Instead,

BEREC says practices will have to be looked at case by case.

Companies are not going to take many risks, under such circumstances, even if consumers want such features, services and price points.

There are other issues as well, but the creation of uncertainty is a clear problem.