Belgian court’s decision impacts the future of Router Freedom
In an historic ruling within the EU, a Belgian court has upheld
the decision of the country’s regulator to introduce Router Freedom
for fiber networks. The objections, raised by a local internet service
provider, were deemed unfounded. This landmark decision represents a
significant victory for consumer rights, and we urge other national
regulators to follow this example.
Internet services providers (ISPs)
have been pushing back in different ways to limit the ability of
end-users to choose and use their own routers for internet connection.
After a thorough
regulatory process which officially confirmed
Router Freedom in Belgium, the local ISP Orange contested the
decision of the Belgian Institute for Postal Services and
Telecommunications (BIPT) alleging lack of proportionality. Although
past court cases in other countries have been decided in favour of
end-users, the Orange vs the BIPT case represents an important victory for
Router Freedom: this is the first time a court refers to fiber networks
from the perspective of the regulatory framework established by the
2020 reform of the telecommunications law in Europe.
Orange’s
allegations rebutted by the court
In September 2023, the BIPT, following the BEREC guidelines, defined
the position of the “network termination point“. This means that
routers, modems and optical network terminals
(ONT) would not be part of the ISPs’ infrastructure, opening up the
possibility for freedom of choice in the equipment market. The
regulatory decision encompassed fiber networks, following by a
comprehensive technical, economical and legal analysis conducted by the
regulator.
Orange questioned the Belgian regulator
decision’s regarding the position of the NTP, which introduced Router
Freedom in the country. Source: BEREC
Soon after the publication of the decision, Orange
started litigation at the Market Court in Brussels against the
regulator, listing a long list of arguments against the decision:
-
The BIPT was not diligent in the decision-making process;
-
The BIPT insufficiently researched the market and technical situation
in Belgium to decide to place the NTP at Point A;
-
The decision should be reversed because it violates proportionality.
The market situation in Belgium is different from other countries that
decided in favour of Router Freedom. Instead, Point B should have been
chosen;
-
Orange was under the assumption that the BIPT would choose Point B, therefore violated its trust;
-
The decision was not technology-neutral because it excluded other terminal
equipment (like TV decoders) from its scope.
The court dismissed all Orange’s arguments as unfounded,
confirming the BIPT’s decision to introduce Router Freedom in
Belgium by defining the position of the NTP at Point A. The
court ruled that:
-
Although the court has the authority to check the legitimacy of
the regulator’s decision, it should not regulate in its place. In
any case, the BIPT has not violated the principles of proper governance
and was diligent in following the regulatory framework proposed by
BEREC, in particular the Guidelines
for the Identification of the
NTP;
-
The BIPT was not unreasonable to set the NTP at Point A, as
Orange stated multiple times. Instead, the regulator acted
diligently and took into account the different technologies (cable,
copper, fibre). The BIPT determined that there are no objective
technological reasons to limit freedom of terminal equipment. The
purpose of setting the NTP at point A is to create a framework that
stimulates competition;
-
Deciding in favour of Point A was
proportionate. The regulator diligently analysed competition in the
equipment market; the costs for operators and the service provision,
sustainability and energy consumption aspects. Orange did not
provide concrete data to demonstrate that the BIPT insufficiently
researched technological necessities to limit freedom of
terminal equipment. The situation in each country is indeed
different. That’s why regulators are required by BEREC to assess
whether there are objective criteria to limit this freedom: the
BIPT’s comprehensive assessment demonstrated that there are none;
-
The BIPT has not violated the trust of the operators. It is
not sufficient for Orange to claim that their own concrete interest
is better served with a different outcome than the one proposed by
the BIPT (limiting Router Freedom at Point A). The BIPT did not
arbitrarily determine the position of the NTP;
-
Media boxes and TV decoders
are not the same as routers and modems, so they should be treated
differently.
The FSFE emphasises the importance of this ruling as the court has
not only clarified the procedural aspects, but confirmed the Belgian
regulator's diligence in analysing all the market, technical and
sustainability aspects concerning Router Freedom. It should be
highlighted that the court reaffirmed the BIPT’s conclusion that no
technological necessity to limit Router Freedom in fiber networks was
found. This resonates with FSFE’s demands that ISPs’ commercial
interests should not prevail over consumer rights. This ruling should
serve as an precedent for other EU member states who have argued the
existence of such technological constraints in fiber networks.
The future of Router Freedom is under attack, help us safeguarding
it
For many years ISPs have been pushing back in different
manners to limit the ability of end-users to choose and use their own
routers for internet connection. Their lobbying power has been intense
against Router Freedom in fiber networks. Countries like Austria and
Latvia have prioritized operators’ interests by not safeguarding
end-users’ freedom of routers, while others like Greece and Croatia
have promoted a compromise by allowing Router Freedom in DSL and coax
but excluding fiber. Particularly concerning are countries, like Germany, which have
positively decided in the past in favour of Router Freedom but are
facing pressure from ISPs to exclude fiber networks.
The FSFE is the only civil-society organisation that
systematically
monitors and advocates in favour of Router Freedom
across Europe. We have intervened in key regulatory processes,
and articulated alliances and coalitions with local digital rights
groups,
industry representatives and consumer protection organisations. We have
participated in dozens of conferences and events in Europe, and have
been quoted by the media, think tanks and academics.
Most
importantly, we are aiming at the future. Our advocacy does not expire
in the short term. We are
committed to Device Neutrality as we believe
everyone should be able to bypass gatekeepers – these small or
large corporations blocking their rights – to run Free Software on
their devices. For example, while Apple is hampering software
freedom
on smartphones, ISPs prohibit subscribers to have their own routers
running Free Software operating systems.
An open, healthy and
neutral Internet needs Router Freedom, as this freedom refers to the
hardware layer of Net Neutrality. Indeed, Router
Freedom was considered
a top priority by a study on the future of the Net Neutrality
Regulation commissioned by the EC last year. The study cited the FSFE
in several parts.
New challenges are appearing in the horizon. Next year the EU will
assess its telecom legislation that tasked BEREC to develop the
guidelines on the NTP. In parallel, as the importance of satellite
networks grows, it is not clear how regulators will react to lack of
freedom of choice among proprietary devices.
Router Freedom is key for an open and neutral Internet. We
have achieved so much in the last five years balancing the power of
ISPs to promote software freedom in routers and modems! Your support is
vital for our advocacy and policy engagement in favour of your right to
choose and use your own router.
Please become an FSFE supporter today
and help us keep our independence!
Donate now
A big shout out for the FSFE Benelux Team for the amazing work in translating the lengthy and complex court decision!
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