Netnod responds to the Gigabit Infrastructure Act

On 30th of March 2023 Netnod was given the opportunity by the Ministry of Finance to comment the Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures to reduce the cost of deploying gigabit electronic communications networks and repealing Directive 2014/61/EU (Gigabit Infrastructure Act, COM(2023)94).

Netnod notes the increased interest to ensure proper functioning of the Internet, although through vague terms such as “broadband” and “gigabit infrastructure” rather than specifying what the Internet or Internet Access is. Netnod is of the opinion that the legislator should take height for the global and distributed nature of the Internet and design policy thereafter. Netnod has responded in the Swedish submission for comment process and the answer is available here (in Swedish).

There are three principal issues with the current legislative proposal:

The proposal is descriptive and normative

Rather than to create incentives for shared infrastructure the legislative proposal forces sharing of network expansion plans, except for “critical national infrastructure”. This means that the legislative proposal will not affect the efficiency of network expansion (i.e., network capacity / function / etc per invested resource), as the external parameters stay the same. 

The proposal is of ex ante regulatory character

The EU has previously noted that ex ante sector-specific rules are problematic, and that the electronic communications sector over time should be governed by ex post competition law.

“This Directive aims to progressively reduce ex ante sector-specific rules as competition in the markets develops and, ultimately, to ensure that electronic communications are governed only by competition law.”

EECC (recital 29)

The current proposal goes directly against the notion that electronic communications should be governed by ex post competition law.

The proposal makes exceptions for for “critical national infrastructure”

The suggested proposal makes exceptions for “critical national infrastructure” without defining “critical national infrastructure” nor problematising the effects of such exceptions. The problem here is that in national law most telecommunications infrastructure is critical in one way or another, which implies that the suggested proposal is void on arrival for most incumbent telecommunications actors, and only applicable for new market entrants which have not yet achieved “critical national infrastructure” status.

Furthermore, Netnod considers that the EU, and Sweden, should adopt Internet-strategies, not broadband or gigabit strategies. We need a strategy for communication across all of society, a communication architecture for all sectors, and not only ex ante sector specific policy.