New European counterpart to FCC will ensure 'a more neutral net'

During one of the more noteworthy weeks in Europe's modern history, as the 27 member nations of the European Union prepare for a newer and more centralized executive authority, the EU will also be making way for a powerful regulatory authority for telecommunications: the Body of European Regulators for Electronic Communications (BEREC). This is the name for the new European Telecoms Authority; and whereas in the US, there remains considerable debate over whether the Federal Communications Commission can and should have regulatory authority over Internet transactions, in Europe, the debate has officially been settled: BEREC will have authority to propose regulations for telecommunications in all forms, including the Internet.

But the power for approving, exercising, and then administering those regulations has been delegated to the European Commission. So although the new telecoms authority will be comprised of the national telecom regulatory heads from each member nation, the EC will have the authority to overrule them. Negotiations over this single provision extended for hours and eventually days, according to the EC, with the central point of contention being this and only this provision.

But in the end, the agreement reached early Thursday morning essentially gave the EC everything it has asked for, without any hint of compromise.

"When the Commission, in close cooperation with BEREC, considers that a draft remedy notified by a national regulator would create a barrier to the single market," reads this morning's communiqué from the EC, referring to the continent-wide telecommunications market, "the Commission may issue a recommendation that requires the national regulator to amend or withdraw its planned remedy. The new rules also enable the Commission to adopt further harmonization measures in the form of recommendations or (binding) decisions, if divergences in the implementation of remedies persist across the EU in the longer term."

"Harmonization" is the EC's term for getting everyone's ducks in a row, and has been a favorite watch-word of Comm. Viviane Reding, whose authority over Europe's Internet industry has just increased.

Also within Comm. Reding's power will be the ability to order a country's telecom company, once it steps over the regulatory body, to divest itself of its services division if it wishes to maintain control of a majority of lines or transmitters in its given nation. This is the functional separation option introduced in the original proposal two years ago, based in principle on the spinoff of Openreach from UK-based parent BT in 2003, in one of the EC's first telecom-related antitrust actions.

A final draft of what's now called the Internet Freedom Provision will not, as some European journals had reported, guarantee broadband Internet access as a fundamental human right. What it will do, however, is guarantee that an individual's right to choose any available application over the Internet is not suppressed by a service provider's maintenance measures, privacy policies, or lack thereof. In its entirety, the new annex of the Provision reads as follows:

Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users' access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.

Final votes in the European Parliament on the creation of BEREC will take place later this month, although at this point, they're seen to be largely ceremonial. The new authority -- and the authority over that authority -- could come into existence in the first quarter of 2010.