epicenter.works response to the public consultation on BEREC Net Neutrality Regulatory Assessment Methodology
1. Executive Summary
We welcome BEREC’s e orts to standardise the certifcation procedure for measurement software according to Regulation (EU) 2015/2120. This consultation is taking place more than one year after the Regulation which obliged BEREC to develop this methodology went into e ect. We urge BEREC to accelerate its standardisation process, amend the proposed document with additional necessary aspects to give guidance to NRAs and publish the timeline according to which NRAs will implement their mandate to to certify measurement software.
2. General Remarks
NRAs have a general obligation to closely monitor and ensure compliance with Articles 3 and 4 of the Regulation. This obligation will be di cult to satisfy without reliable measurements from end users based on certi ed measurement software, as foreseen by Article 4 (4) and Recital 18 of the Regulation. NRAs are also required under Article 5 and Article 3 (5) of the Regulation to gather data about the network as a whole, potentially discriminating tra c management practices, and the general quality of the Internet access service. The Regulation which established these obligations went into e ect on 30 April 2016. Considering that now, more than one year after the Regulation went into e ect, some member states still operate no certi ed measurement software, the timing of this consultation must be considered late. This procedural shortcoming is accompanied by the lack of transparency by ISPs to state the necessary information in their contracts according to Article 4 of the Regulation. We therefore urge BEREC to publish information on a timeline, clarifying when its methodology will be nalised and when BEREC members are expected to commence their measurement operations.
The most important shortcoming of the document under consultation is the missing requirement of measurement data by the certi ed software to be published in the form of open data. Open data for measurement software creates transparency about the market, allows independent researchers to utilise the data to compare IAS o ers and look for potential net neutrality violations.
Similarly, there should be a clear recommendation that certi ed measurement software is open source (ideally, free software that fully allows end users to modify and redistribute the software). Thereby, NRAs would not only allow each other to utilise and improve a common measurement toolkit, Europe could also contribute a more robust measurement suite to the entire Internet. This is particularly important as most of the currently publicly available measurement tools are outdated and no longer maintained.
Finally, an open data and open source approach inspires trust in the measurement operations and thereby creates allies like consumer protection organisations and digital rights NGOs, enabling them to recommend these measurement tools to their constituencies. Without such support by other organisations, it is questionable whether a su cient number users would use the tools recommended by the respective NRAs and thereby deprive the accumulation of measurement data of the necessary bottom-up support.
