In March, more than 31 European Community Networks (CNs) wrote an open letter to EU policy-makers, stressing the need for an adaptation of the European legal framework aimed at helping these citizen-driven initiatives flourish, thus supporting alternative, democratic and sustainable ways to meet the goals of broadband policies. But rather than opening the door to a much-needed diversification of the telecom ecosystem, European governments only seek to reinforce the dominant positions of incumbent players. As the EU gets closer to a deal over the future of European telecom regulation, the EU Parliament must resist the pressure and reaffirm its commitment to the public interest.
The European Parliament voted yesterday evening on the draft European Code for Electronic Communications, which will form the basis of telecom regulation across the EU for the next decades. The worst was avoided thanks to a majority of members of the Industry, Research and Energy (ITRE) who resisted calls for a sweeping deregulation. The version adopted by the committee maintains enough room for National Regulatory Authorities (NRAs) to regulate monopolistic situations and take Community Networks (CNs) into consideration1, for instance by giving them access to optical fiber networks or promoting shared and unlicensed access to the radio spectrum, which can be essential to swiftly build affordable and flexible networks.
The Members of EU Parliament responsible of the text – in particular the rapporteur Pilar del Castillo, known for being close to the Spanish incumbent Telefonica – will now have to negotiate with the EU Council, which represents European governments. But these so-called “trialogue negotiations” have an obvious lack of transparency, making them very difficult to follow. This is all the more worrying given that the EU Council has drafted a very alarming version of the draft code, which aims at overhauling pro-diversity policies and at encouraging the oligopolization of telecom infrastructures.
On access regulation, the Council wants to see a 7-year period without regulation after new network deployments (such as newly rolled-out optical fiber networks). The national regulatory authorities would then have no way of imposing pro-competitive obligations on incumbents, giving big telcos all latitude to extend their oligopolistic positions at the detriment of CNs and other cooperative or non-profit operators. Should the Council proposal prevail, we will witness the disappearance of small alternative network operators.
On radio spectrum, the EU Council intends to preserve the Governments' control over this vital resource, which will allow them to pursue ill-advised policies benefiting the biggest operators and failing to make the best out of the radio commons. In particular, this will undermine the alleged efforts from the European Commission to develop and extend the shared and unlicenced access spectrum, which enables the development of cooperative or non-profit operators and boosts diversity in the telecom sector.
On institutional aspects, the Council wants to let Member States decide which authority shall ensure market supervision and users' rights. By allowing for the circumvention of NRAs, this could undermine any form of independent national regulation as well as any form of coordination at European level.
In a policy domain that has for too long been prone to regulatory capture by private interests, we call on the Members of the European Parliament to defend the public interest by promoting pro-competition and pro-diversity policies. By resisting the pressure of European governments who seek to further entrench the power of the largest industry players over network infrastructures, our elected representatives can ensure that alternative operators and local communities have the adequate means to develop and innovate, offering forward-looking models and services to the benefit of all.
Dear Sir, Madam
Delegations of Members of the EU Parliament are currently finalising trialogue negotiations on the WIFI4EU draft regulation. The regulation will allow local authorities to open WiFI hotspots to boost Internet access, particularly in underserved communities.
WIFI4EU is an initiative announced last year by President Juncker in his “State of the Union” speech in Strasbourg. To deliver on this promise “to equip every European village and every city with free wireless Internet access around the main centres of public life by 2020”, the EU will unleash 120 million between by 2017-2019 to roll out WiFi hotspots in at least 6,000 to 8,000 local communities.
But as the trialogue draw to a close, there is a huge risk of seeing this laudable initiative miss the opportunity of fostering diversity in the telecom sector as well as human rights. Recent negotiations show that Member State governments seek to keep small and local access providers out of the scheme, favouring incumbent multinational corporations while allowing them to spy on users' communications.
To overcome these risks, we call on the EU Council and the EU Commission to endorse the constructive proposals put forward by the European Parliament, and ask that the letter stand firm to safeguard the public interest in EU telecom policies.
In recital 4 of the regulation, the European Parliament insists on the involvement of organisations such as “not-for-profit cooperatives” and “community centres” as entities that could offer wireless connectivity. In the same vein, at recital 9b, the EP wants to promote local SMEs and not-for profit actors as key beneficiary for the procurement and installation of equipment 1. Such language ensures that small, local actors — including for-profit SMEs as well as many non-profit community networks — will be eligible to WIFI4EU funds. By directing the funds to these small but competent players, WIFI4EU would promote local employment, spread of technical skills as well as diversity in the telecom sector, rather than favouring already dominant players in the industry. This is all the more shocking considering that many non-profit community networks are already rolling out the kind open wireless networks promoted by WIFI4EU, with little or no public support. By directing EU funds to these actors when possible, WIFI4EU has the potential of helping them grow and expand their activities at the local level. Unfortunately, the EU Council is trying to remove these recitals arguing that they lack any legal basis, and paving the way for dominant actors to reap most of WIFI4EU subsidies.
In recital 2, both the EU Parliament and EU Council are promoting a solution for a single authentication system that can be used across the EU. This solution favouring authentication system to regulate access to “open” networks is not backed by any substantial reasoning, and runs counter to human rights. We understand the co-legislators' goal of making access to these public networks as easy as possible for people travelling across the EU, but the most simple way to do so is to ensure these are, indeed, open networks without authentication. If the goal of having an authentication system is to prevent illegal activities, co-legislators should be reminded that Advocate General of the CJEU recently explained in the case C‑484/14 (McFadden) that imposing on Wi-Fi network operators an obligation “to identify users and to retain their data” would be “clearly disproportionate” as it “would not in itself be effective (…) in preventing specific infringements”. In the final ruling, the Court agreed that such an obligation should only be imposed after a specific targetting injunction requiring a WiFi operator to do so. To minimise privacy risks associated with data retention and foster ease of use, WIFI4EU should not promote authentication systems in what are meant to be open and free access points.
WIFI4EU should not commodify publicly-funded services by allowing advertising schemes enabled by commercial surveillance. Unfortunately, the Council is trying to undermine the protection suggested by the EP in recital 2, which precludes the use of traffic data for advertisement purposes or other commercial uses. The EP and Council must keep the EP version to be fully in line with the data protection framework and the EU Charter of Fundamental Rights. Furthermore, commercial use of data cannot be justified within an implementation of public utilities —especially when funded through public money.
The number one priority for WIFI4EU must be to develop open and free wireless networks that boost Internet access in underserved communities. The Council's proposal to delete the policy objective of “preventing remote locations and rural areas from lagging behind” and of making these publicly-funded networks both “free of charge and free from restrictions” is dangerous. It suggests that WIFI4EU networks might not be free, nor open, nor even respect the Net neutrality principle enshrined in the EU regulation on the telecom single market. The language put forth by the EU Parliament must be upheld.
We count on you to ensure that the proposals of the EU Parliament, which serves the general interest and specific goals of EU broadband policy, are safeguarded in the final text.
Read the full document here (pdf)
We represent European Community Networks, a growing movement of organizations that operate local communication infrastructures, sometimes federated at the regional or national levels. These networks, most of which also provide access to the global Internet, are operated as a commons. That is, rather than being driven by for-profit motives, our key focus is on providing connectivity while striving for democratic governance, social inclusion, education, and human rights with respect to communication technologies.
Our organizations vary considerably in terms of sizes, types of network infrastructures and political cultures. Yet, despite this diversity, we are united by the common objective to build networks that meet the communication needs of humans (rather than those of objects and machines), through networks that are built and run by our communities, for our communities, focused on local empowerment, affordability and resiliency.
Today, we collectively provide broadband connectivity not only to tens of thousands of individual European citizens and residents in rural or urban settings, but also to organizations including small and medium sized companies, schools, healthcare centers, social projects and many more. In many cases, we have out-competed mainstream operators, by providing cheaper and faster Internet connectivity than incumbent players. Thanks to our infrastructures and through our various activities, we foster scientific and engineering experiments, we help local hosting and service providers come together to mutualise investments and share costs, we support digital literacy and data sovereignty through workshops and other educational activities.
Yet, despite our achievements, policy-makers at the national and European levels have so far mostly neglected our existence and specific regulatory needs. Worse, regulation is often hampering our initiatives, making the work of our participants and volunteers harder than it should be. This is why, as you start working on a European code of electronic communications, we decided to contact you and voice our ideas and recommendations regarding the future of the legal and policy framework regulating our activities.
1. Lifting unnecessary regulatory and financial burdens
We first ask you to review the regulatory framework and get rid of unnecessary regulatory burdens, such as fees or red-tape that are unnecessary or illegitimate when imposed on small non-profit entities. In Belgium for instance, the registration fee that telecom operators must pay to the NRA is at 676€ for the first registration, plus 557€ every following year (for those whose revenues are below 1M€, which is the case for many community networks). Even such small fees can hinder the growth of small networks that efficiently serve tens of households. In France, Spain and Germany, it is free, which might explain why the community network movement is much more dynamic in these countries. The proposed code for electronic communications aims to harmonize procedures for declaration fees (first registration) as well as administrative charges (annual fees). EU lawmakers must ensure that the fees and charges imposed by national NRAs are null or negligible for non-profit ISPs and reasonable and proportionate for micro and small businesses. Likewise, taxes designed for large corporate firms in the telecom sectors should not apply to smaller, non-profit operators.
2. Getting rid of third-party liability when sharing Internet access
Several laws seek to prevent the sharing of Internet connections amongst several users by making people responsible (and potentially liable) for all communication made through their Wi-Fi connection, and create legal risks for people sharing their connection. In Germany, rights-holders have used a “secondary liability” doctrine to chill the growth of the community networks movement. In France too, copyright law imposes a secondary liability regime that creates significant legal uncertainty for people sharing their network connections with other users. The so-called “mere conduit”, inscribed in EU law since 2000 in the directive on information society services, needs to be guaranteed and expanded to small-area wireless access points. In the same spirit, contract clauses that forbid subscribers to share their connections with others should be prohibited. Promoting a right to share Internet connections is all the more vital considering the economic and ecological crises, as well as the rapid increase of populations that cannot afford access to the Internet. In this context, connection sharing can play a critical role in fostering a more equitable and sustainable use of telecommunications infrastructure.
3. Expanding the spectrum commons
It is not just Internet wireless access points that can be shared, but also the intangible infrastructure on which radio signals travel. Wi-Fi, as an unlicensed portion of the spectrum and therefore a commons, is a key asset for community networks willing to set up affordable and flexible last-mile infrastructure. However, these Wi-Fi frequency bands are currently very limited. Not only are they getting increasingly subject to congestion in densely populated areas, they are also exposed to new technical standards that use the so-called ISM frequency band (like LTE-U) that hamper the reliability of Wi-Fi communications. Last but not least, existing frequency bands for Wi-Fi (5,6 Ghz and 2,4 Ghz) have physical constraints that prevent them for being used for longer radio links. In the face of such challenges, a new approach to spectrum policy is needed. Policy-makers should expand unlicensed Wi-Fi bands. Other types of frequencies should also be made available either on an unlicensed (preferred scenario) or, if not possible, based on affordable and flexible authorization schemes. Such frequency bands for instance include so-called white spaces in lower frequencies (which allow for cheap and resilient long-distance links), as well as the 12Ghz and the 60Ghz bands (for which radio equipment is affordable and which can help us build high-bandwidth point-to-point radio links). Once made accessible to community networks, they can help roll-out and expand cheap and resilient wireless infrastructures.
4. Updating open-access rules in telecom infrastructures
Networks built with taxpayers money should also be treated as a commons and, as such, remain free from corporate capture. Today, their management and exploitation is often delegated by public authorities to corporate network operators. These entities usually adopt aggressive pricing schemes designed for incumbent players that make it extremely costly for small access providers to interconnect with these networks. Access to these publicly-funded networks for non-profit entities like community networks as well as small businesses should be guaranteed, at a reasonable and proportionate cost. Similarly, community networks often cannot have access to the private local infrastructures of incumbent players, despite the fact that these are the only way to connect willing subscribers. Indeed, in many European markets, the deployment of optical fiber networks is (re)creating monopolistic conditions on local loops through pricing schemes which preclude small actors from accessing these private networks. Policy-makers and regulators should ensure that every area is covered by at least one telecom operator with a so-called “bitstream” offer affordable for smaller players.
5. Protecting free software and user freedom in radio equipment
In 2014, the European Union adopted Directive 2014/53 on radio equipment. Although the Directive pursues sound policy goals, it might actually impair the development of community networks. Indeed, community networks usually need to replace the software included by the manufacturer in radio hardware with free and open source software especially designed to suit their needs, a collective process that improves security and encourages the recycling of hardware, among other benefits. Article 3.3(i) of the said Directive creates legal pressure for manufacturers of radio devices to ensure the compliance of the software loaded on these devices with the European regulatory framework. As a result, there is a strong incentive for manufacturers to lock down their devices and prevent third-party modifications of the hardware. We therefore ask policy-makers to provide a general exception for all free software installed on radio devices by end-users and operators (the latter being liable if their software lead to violations of the regulatory framework), so that users' rights are safeguarded.
6. Abrogating blanket data retention obligations
Community networks strive to safeguard human rights in communication networks, and in particular the right to privacy and the confidentiality of communication. While we welcome recent rulings by the Court of Justice of the European Union holding that indiscriminate retention of metadata violates the Charter of Fundamental Rights, we are concerned about several member states' willingness to circumvent these rulings to protect capabilities for indiscriminate surveillance. As EU lawmakers start discussing the overhaul of the ePrivacy Directive, we call on them to oppose any blanket data retention obligations and close existing loopholes in EU law to ensure that only targeted and limited retention obligations can be imposed on hosting and access providers.
7. Bringing direct and targeted public support
Countless other policy initiatives can help support community networks and the significant associated benefits they bring. Such policies include small grants, crowd-funding and subsidies to help our groups buy servers and radio equipment, communicate around their initiative, giving them access to public infrastructures (for instance, the roof of a public building to install an antenna), but also to support their research on radio transmission, routing methods, software or encryption. As many local authorities have found, supporting community networks is a sound policy option. As EU lawmakers move forward on the WiFi4EU initiative, we would like to remind you that we have pioneered various models for the provision of free public access points. We believe that public money invested in this initiative should primarily go to groups pursuing a bottom-up logic, seeding local groups that can foster the empowerment and cohesion of local communities, nurture competition, and meet the same policy-objectives at a fraction of the cost that would be charged by mainstream telecom operators.
8. Opening the policy-making process to Community Networks
Although we have often partnered with municipalities and local public authorities, we ask that national and European regulators pay more attention to our activities when drafting regulation. Community networks have both the expertise and legitimacy to take an integral part in technical and legal debates over broadband policy in which traditional, commercial ISPs are over-represented. Community networks can bring an informed view to these debates, allowing for a policy-making process more attuned to the public interest.
We thank you for your attention and very much look forward to engaging with you on these important issues,
First signatories (EU-based community networks)
Supporting organizations (signing in support of the general approach and/or specific proposals put forward in the letter)