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US and EU must create coherent laws on net neutrality, says expert

Governments in the US and the EU are considering regulations to do with net neutrality, the principle that all internet traffic should be treated equally, and technology law expert Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said that regulators in the EU and the US are taking differing approaches to the issue. 18 Mar 2015

The US Federal Communications Commission (FCC) recently released a 313-page document outlining its rules on net neutrality. The FCC has reclassified broadband as a 'Title II telecommunications service' under the 1934 Communications Act. This means that internet service providers (ISPs) are now subject to the same regulations as telephone networks,  although the FCC has flagged up many areas where broadband will be exempt.

The reclassification will allow the FCC to enforce three rules on ISPs: no blocking, no throttling and no paid prioritisation.

ISPs will be unable to block lawful content, applications, or services on non-harmful devices; they will not be able to slow down specific applications or services; and  they will not be able to accept fees for better service or 'internet fast lanes', CNET News.com said in an analysis of the situation.

ISPs have criticised the manner of the decision taken by the FCC, and Comcast has said that it could harm investment in networks.

In Europe the presidency of the Council of Ministers was given a mandate earlier this month to open final discussions on net neutrality with the European Parliament. Under current proposals, "traffic management" by ISPs would be allowed in certain circumstances.

"Blocking or slowing down specific content or applications will be prohibited, with only a limited number of exceptions and only for as long as it is necessary," the Council of Ministers said in a statement. "For instance, customers may request their operator to block spam. Blocking could also be necessary to prevent cyber attacks through rapidly spreading malware."

ISPs and content providers would be free to agree commercial deals that guarantee "a specific level of quality" of service by the ISP in delivering content to internet users. However, ISPs would be required to ensure that special treatment of that content did not prevent it from delivering basic internet services to other consumers.

The Alliance of Liberals and Democrats for Europe (ALDE), the fourth largest grouping of MEPs in the European Parliament, told the BBC that the proposals on net neutrality were "extremely disappointing" and could "lead to commercial practices that go against consumer interests".

Business interests are also likely to be affected, if EU and US rules do not align, Scanlon said.

"It would be preferable economically for the laws to be coherent across jurisdictions. Businesess don't want to find themselves in a similar position to the one they face on data protection, where the US and the EU approaches are significantly different," he said.

"If businesses have to find their way through two competing regimes, that just places more difficulties in their way. It's important that each side keeps a close eye on what the other is doing and ideally develop a coherent approach," Scanlon said.