Net-neutrality clause likely to delay telecoms reform

The last-minute addition of a net-neutrality clause to a package of telecommunications reforms will probably delay the package's approval by telecoms ministers, the European Parliament has said.

On Wednesday the Parliament voted through the Telecoms Package, which includes a mixture of reforms covering topics ranging from number-porting and data-breach notification to radio-spectrum use and the establishment of a Europe-wide telecoms super-regulator.

The sticking point is a clause inserted shortly before the vote that says "no restriction may be imposed on the fundamental rights and freedoms of end users, without a prior ruling by the judicial authorities… save when public security is threatened". The Telecoms Package also stated that internet access was a fundamental right.

The clause in question, numbered 138/46, is widely seen as a way of stopping so-called "three-strikes" legislation, such as the Hadopi bill that the French parliament rejected last month but will reconsider on 12 May. Such legislation can force ISPs to cut off users who are suspected of illegal file-sharing.

The Council of Telecoms Ministers will convene in mid-June to approve or reject the Telecoms Package. Given the Council's known opposition to the net-neutrality clause, the European Parliament said in a statement on Wednesday that it expected the entire package to be delayed, despite the two sides having informally agreed the rest of the package beforehand.

"By amending an informal agreement reached with [the] Council, MEPs send the whole 'telecom package' to conciliation," the statement read. "The EP does, however, agree with the Council on investments in new communications infrastructure, the reform of radio spectrum use, clear consumer rights and privacy protection."

In its statement, the European Parliament said new negotiations would be likely to start after the next European elections, when a new Council Presidency is in place. This would imply a resumption of discussions in September, which could take the package's implementation date through to 2010.

One element of the Telecoms Package that now faces delay is a set of guidelines for national regulators on investment in next-generation broadband. These guidelines are designed to provide certainty to dominant telecoms firms who might be planning to roll out fibre, but are not yet sure whether existing obligations to provide competitors with open access might hamper the returns on their investment.

According to the European Parliament's statement, the Council of Telecoms Ministers had already agreed that "any access obligation to open this new infrastructure to competitors will have to take appropriate account of the risk incurred by the investing undertakings" and should allow for "co-operative agreements between investors and access-seeking parties", to diversify investment risks.

In a statement following Wednesday's vote, Ilsa Godlovitch, director of regulatory affairs at the European pro-competition telecom group Ecta, said the vote "may delay adoption of the package but it does not remove the need for firm and urgent action by regulators to make sure telecom markets are competitive".