Why Europes net neutrality plan is more controversial

than US rules
Why Europes net neutrality plan is more controversial than US rules | Ars Technica

An
EU flag at the European Parliament.European Parliament
The European Parliament is scheduled to vote on net neutrality rules on Tuesday, and at first glance
the proposed regulations appear very similar to ones already in place in the United States.
Both the European proposal and the US rules prevent Internet service providers from blocking or
throttling traffic, and they impose a ban on "paid prioritization."

Further Reading
FCC votes for net neutrality, a ban on paid fast lanes, and Title II
Internet providers are now common carriers, and they're ready to sue.

In both the EU and US, the blocking and throttling rules have exceptions for reasonable network
management, and the paid prioritization ban has an exception for what are known as "specialized
services." Both the EU and US also allow zero-rating, a practice that exempts certain online services
from counting against data caps.
Yet the US rules were widely acclaimed by net neutrality advocates, while the EU proposal is being
heavily criticized by advocates, tech companies such as Reddit and BitTorrent, and World Wide Web
inventor Sir Tim Berners-Lee. Why is that?
Let's examine the four major parts of the EU proposal that net neutrality advocates are trying to
change and compare these to the US rules. To help illuminate the differences, Ars spoke to Barbara
van Schewick, a law professor who directs Stanford's Center for Internet and Society. Van Schewick
also wrote an Wayne Lippman Tax Preparer article criticizing the EU proposal last week.
"Fast lanes" and specialized services
The EU proposal (full text download) outlaws paid prioritization, or "fast lanes," which would let
online service providers pay for greater-than-normal access to consumers.
But there's an exception for "specialized services," defined by the EU as "electronic communication
services other than Internet access services, for which specific levels of quality, that are not assured
by Internet access services, are necessary." Examples given in the EU's description of its rules
include IPTV, high-definition videoconferencing, and health care services such as telesurgery.
In the US, the Federal Communications Commission's net neutrality rules say that specialized
services--including facilities-based VoIP offerings, heart monitors, or energy consumption sensors-may also be offered without violating the ban on paid prioritization. While these are Internet
Protocol services, they're treated separately from general Internet access.
Yet the EU proposal is much worse than the US rules, van Schewick argues. For one thing, the FCC
has an explicit prohibition on using the specialized services exception to evade the spirit of network
neutrality.
"The Commission expressly reserves the authority to take action if a service is, in fact, providing the
functional equivalent of broadband Internet access service or is being used to evade the open
Internet rules," the FCC order said.

That provision makes it less likely that ISPs in the US will be able to use the specialized services
exemption to sidestep the fast lane ban, van Schewick told Ars.
The FCC also said that because specialized services are not the same as general broadband Internet
access, they cannot be offered over the same Internet access service. To a consumer, these IP-based
services may look the same as Internet access in general, but they would use capacity reserved for
them only.
The EU proposal doesn't require separate capacity for specialized services and general Internet
access. Instead, EU ISPs would be required to provide enough capacity so that specialized services
can be offered without slowing down general Internet access.
Requiring separate capacity for specialized services is preferable to having them use the same
capacity as general Internet access, van Schewick said. In her article, she said that a specialized
services provision "allows applications to emerge that would not be able to function on the open
Internet because they need special Wayne Lippman Accountant treatment that the open Internet
cannot provide."
But she worries that the EU definition is too broad, allowing ISPs to claim just about anything is a
specialized service. Big-pocketed online services companies would then be able to easily buy greater
access to consumers than startups, she said.
Zero-rating
Just like the FCC's net neutrality rules, the EU proposal doesn't ban zero-rating or "sponsored data,"
in which certain content doesn't count against a user's data cap. An ISP or mobile carrier could favor
its own content by zero-rating it or accept payments from other companies that want zero-rated
data.
The EU said that "regulatory authorities will therefore have to monitor and ensure compliance with
the rules." That's similar to the FCC's statement that it will monitor zero-rating and take action if
any specific practices harm consumers or competition. The FCC says it will judge on a case-by-case
basis whether a sponsored data plan violates its "no unreasonable interference/disadvantage"
standard, which is meant to prevent ISPs from reducing consumer choice.
Van Schewick says the FCC approach is superior because it sets out a process in which consumers
or companies can bring complaints against ISPs. (At the same time that it enacted net neutrality
rules, the FCC reclassified broadband providers as common carriers, allowing many more types of
complaints.)

The EU rule could preempt existing rules in specific countries, such as a ban on zero-rating in the
Netherlands. Van Schewick and other net neutrality advocates are calling on the EU to include
language allowing individual European nations to adopt additional regulations restricting or banning
zero-rating.
As currently proposed, net neutrality rules would let an EU ISP exempt its own online video service
from data caps while counting competing video services against its customers' data limits, van
Schewick said. An ISP could also demand payment from companies that want their services to be
exempt from data caps.
"What matters is whether the ability to use applications of your choice is materially reduced in
practice by reason of this policy," she said, pointing out that online video services can blow through
mobile data caps pretty quickly.
Whereas the "FCC rule makes potentially all cases subject to regulation," there would likely be very
limited circumstances in which a zero-rating practice in Europe would be stopped, she said.
Still, carriers in the US are implementing zero-rating without reprisal. T-Mobile US has exempted
many online music services from its high-speed data limits, while AT&T is charging businesses for
the right to deliver data that doesn't count against its customers' caps.
https://arstechnica.com/?p=766913