White Paper submitted as an attachment to the comments submitted to BEREC’s Consultation on its Draft Further Guidance on 5G Network Slicing.
For years, major European telecommunications companies have argued that the Open Internet Regulation, the European Union’s net neutrality law, prevents them from offering innovative services using 5G technology. They frame their requests as seeking “clarification” of existing rules to enable 5G innovation that would otherwise be stifled by regulatory uncertainty.
This framing obscures what’s really at stake.
5G network slicing is nothing new. Network slicing lets ISPs treat some internet traffic differently than other traffic and wall off different parts of the network from each other.
ISPs have long been able to do that. 5G simply makes it easier for mobile ISPs to differentiate traffic, even as the explosion in capacity reduces the need to do so.
And like earlier technologies for differentiating traffic, slicing can implement what the Regulation permits or what it prohibits. A slice can deliver a low-latency service that any application can use at the user’s choice, or a fast lane reserved for the applications the ISP selects. The technology doesn’t decide which; the law does.
How to deal with technology that lets ISPs treat traffic differently is not a new question, either. Distinguishing between socially harmful and socially beneficial discrimination is the essence of net neutrality.2 Meaningful net neutrality protections ban socially harmful discrimination and encourage socially beneficial differentiation. Which technology an ISP uses to implement that discrimination is irrelevant.
The Open Internet Regulation draws that line: it provides a nuanced and balanced framework that enables beneficial innovation while preventing harmful practices.
The Regulation already gives ISPs three ways to offer the enhanced quality that 5G makes possible. They can offer plans that put users in control, where subscribers choose which of their applications get enhanced service. They can offer differentiated plans, such as a low-latency plan, where all of a subscriber’s traffic gets better quality. And they can offer genuine specialized services for applications that cannot function on the internet at all.
What the Regulation prohibits is the one thing these alternatives are designed to avoid: fast lanes controlled by ISPs, where the ISP, not the users, decides which applications get preferential treatment, and where applications can be made to pay for it.
What telecommunications companies now frame as requests for “clarification” are proposals to move the line between beneficial and harmful discrimination: to undo this balanced framework and reverse the carefully considered policy choices the European legislator made and Europe’s regulators have repeatedly reaffirmed.
This is not the first time European ISPs have sought these changes. In 2015, the day after the European Parliament passed the Regulation, Deutsche Telekom’s CEO claimed that it allowed ISPs to charge common internet applications for a fast lane to ISPs’ subscribers. The resulting uproar drove record numbers of Europeans to participate in BEREC’s consultation on how to implement the law, and BEREC closed the loophole. ISPs have tried to reopen it at every revision of BEREC’s guidelines since, without success. In the 2023 review of the Regulation, ISPs were the only group arguing that the framework was not clear enough.
This paper explains what the Open Internet Regulation prohibits and why: letting ISPs control which applications get preferential treatment distorts competition, harms innovation, and interferes with user choice. It shows how the Regulation already enables ISPs to support applications that benefit from enhanced service in ways that avoid these harms, through fast lanes controlled by users and differentiated plans. It explains why expanding the specialized services exception to applications that function on the regular internet would recreate exactly the harms the Regulation was written to prevent. And it shows that if any clarification of the rules is needed, the body the European legislator rightly chose to provide it is BEREC.
The stakes are high: whether the internet remains an open platform where good ideas and user demand drive success, or becomes a two-tier system where ISPs control which applications thrive.