Inaction of Ministry of Energy, Tourism and the Digital Agenda with Regard to Its Obligation to Apply Necessary Net Neutrality Rules Guaranteeing a Free and Open Internet

Inaction of Ministry of Energy, Tourism and the Digital Agenda with Regard to Its Obligation to Apply Necessary Net Neutrality Rules Guaranteeing a Free and Open Internet.

On 30 April 2016 the European Union’s new Regulation on net neutrality [1] came into force. In Spain, the State Secretariat for the Information Society and the Digital Agenda of the Ministry of Energy, Tourism and the Digital Agenda (MinETAD in the Spanish acronym) is responsible for carrying out supervision measures to ensure that Internet providers comply with this regulation, and to take corrective measures in the event of non-compliance.

However, a year and a half after the Regulation came into force, we have received no news (and not for lack of trying) of any measure taken by the State Secretariat for the Information Society and the Digital Agenda with regard to net neutrality. In the entire MinETAD hardly anyone knows that the Regulation exists, let alone understands that there is an obligation to enforce it.

One of the obligations stated in the Regulation is that the regulating agencies must produce an annual report concerning to its application in the member state concerned. According to the main conclusion of the MinETAD report for 2016 [2]:

“It might be concluded that in 2016 none of the problems associated with complying with the principle of “Net Neutrality” as described in the TSM Regulation are significant. In this regard, the number of complaints, statements of dissatisfaction, and negative reports received in relation with questions raised by this material has been negligible. As shown below, only 0.91% of complaints received by the Spanish Telecommunications User Support Office can be considered as being related with this principle.”

Nevertheless, this 0.91% acquires another dimension and meaning when we take into account the fact that no channel whatsoever (or, at least, none that we have been able to find, and we have also asked specifically for it) has been made available for addressing complaints about net neutrality, either in the State Secretariat for the Information Society and the Digital Agenda or elsewhere in MinETAD [3], despite the fact that the Regulation stipulates that consumers must have access to mechanisms for resolving disputes. Indeed, MinETAD’s own web page on “Net Neutrality” recognises that the Regulation stipulates, “the obligation to provide consumers with mechanisms for resolving disputes, either with the operator or in other instances, with regard to matters that are subject to regulation”. In the case of our own complaint regarding “zero rating” practices which violate the principle of net neutrality [4], Xnet has been waiting since June for a response as they keep redirecting us to the umpteenth phone number and the umpteenth email address. Nobody knows anything.

It might be understood that, in 2016, when the Regulation had just come into force, the State Secretariat for the Information Society and the Digital Agenda was a little disoriented but now, after all this time, this inaction looks more like negligence, especially when, by August 2016, the Body of European Regulators for Electronic Communications (BEREC) had published guidelines [5] clarifying its application. This situation is due to a serious anomaly: while in the great majority of EU member states, the Regulation on net neutrality is applied by an independent regulatory agency, in Spain the powers are divided. The independent National Commission on Markets and Competition (CNMC in its Spanish acronym) only deals with conflicts between operators, while MinETAD has all the other powers. Nevertheless, only the CNMC is listed among Members and Observers of the BEREC office [6], which means that MinETAD cannot or does not wish to be effectively informed.

Neither should we have to recall the traditional sensitivity of several governments with regard to the needs of the telecom companies which are given priority over those of users, and over freedoms of users and consumers.

The 2016 MinETAD report repeatedly refers to the General Telecommunications Act 9/2014 of 9 May, arguing that several stipulations of the EU Regulation on net neutrality were already enshrined in this law and were being applied. However, any overlapping that might exist with the General Telecommunications Act clearly cannot be used as an excuse for the general negligence with regard to implementing the EU Regulation on net neutrality.

While the State Secretariat for the Information Society and the Digital Agenda of MinETAD continues with its leisurely browsing in this limbo which is tolerated by the EU:

1. Internet providers are offering “zero rating” which violates net neutrality [4]:
   
   Vodafone begins to subdivide and sell Internet in packs
2. No complaints channels have been provided and neither have mechanisms been made available to users for resolving disputes pertaining to net neutrality, related either with the operator or other instances..
3. Transparency requirements obliging Internet providers to specify, in their contracts and advertising, not only maximum speed but also real average speed and guaranteed minimum speed are not being complied with..
4. Demands for transparency with regard to explaining to users the provider’s traffic management practices and why they are adopted are not being met. This information must be detailed in contracts as well as being made publicly accessible (since it should be taken for granted that a person ought to be able to read the conditions pertaining to a service before contracting it).

With regard to point 3), Xnet is very interested to know more about Vodafone’s traffic managing practices with Vodafone Pass. It would be very helpful for us if somebody who has signed up for the offer and has a contract could send a copy to info@xnet-x.net so that we can analyse it (all personal information of the contracting party will be treated as confidential and eliminated).

These blatant issues are just a few of a significant number of others which users can confirm are not being dealt with. Nonetheless, the State Secretariat for the Information Society and the Digital Agenda is obliged to supervise much more than that, including for example: ordinary ISP traffic management measures; need for and proportionality of management measures for guaranteeing quality of service; exceptional traffic management measures for ISP; proper categorisation and adequacy (or not) of Specialised Services.

Since there is as yet no sign of proactive fulfilment by MinETAD of its obligations regarding net neutrality, Xnet publicly denounces this negligence and is studying the possibilities of addressing a complaint to higher European Union bodies. We did not struggle for and win the Save the Internet [7] battle for net neutrality in Europe in order to be ignored here in Spain.
 

We continue
 

References:

[1] REGULATION (EU) 2015/2120 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union. This came into force on 30 April 2016.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2120&from=EN#page=8

[2] Report on supervision in Spain of European Regulations with regard to open Internet access (net neutrality), 2016.
http://www.minetad.gob.es/telecomunicaciones/banda-ancha/Paginas/neutralidad-Red.aspx

[3] Result of the search for procedure regarding any matter coming under the auspices of any organ of the ministry.
https://sede.minetur.gob.es/pro-electronicos/

[4] Xnet reports “Zero Rating” offers which are contrary to net neutrality to the
State Secretariat for the Information Society and the Digital Agenda.
https://xnet-x.net/en/zero-rating-offers-contrary-to-net-neutrality-in-spain/

[5] BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Rules (UE) 2015/2120:
http://berec.europa.eu/eng/document_register/subject_matter/berec/download/0/6160-berec-guidelines-on-the-implementation-b_0.pdf

[6] Members and Observers of the BEREC Board of Regulators
http://berec.europa.eu/eng/document_register/subject_matter/berec/download/0/7076-list-of-the-members-and-observers-of-the_0.pdf

[7] Xnet | Eje: Net Neutrality
https://xnet-x.net/en/areas/net-neutrality/