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Belgian court’s decision impacts the future of Router Freedom

✇FSFE News
08. Juli 2024 um 23:00

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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