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P221
According to the Regulation ISPs must describe the minimum, normally available, maximum and advertised download and upload speed in their fixed network contracts. For mobile network subscriptions ISPs must describe estimated maximum and advertised download and upload speeds.
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P222
The Regulation 2015/2120 [1] defines that an end user may use a monitoring mechanism certified by the NRA to check that the actual performance meets what has been specified in the contract. This measurement information can be used for triggering the remedies available to the consumer in accordance with national law.
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P223
This entails a decision on whether the subscription meets the different speed values defined in the contract and whether there is a significant discrepancy, continuous or regularly recurring. Note that in some Member States the NRA may not be competent to resolve disputes between consumers and undertakings providing electronic communications services, including deciding on whether there is significant discrepancy, and such decisions may be made by a different authority or body.
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P224
To be able to issue a declaration that there either is no significant discrepancy between actual and indicated performance or that there is such a discrepancy empowering the user with the right to trigger “the remedies available to the consumer in accordance with national law”, a number of conditions should be satisfied from a regulatory point of view for giving legal value to this “evidence”. The final ruling over which “evidence” is sufficient for triggering legal consequences however is still subject to court rulings. Therefore, decisions of NRAs should be made transparently; all measurement data should be available for further legal considerations of the respective court.
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P225
The Regulation does not require Member States or an NRA to establish or certify a monitoring mechanism. Therefore it is worth noting that a certified monitoring mechanism may be available only in some member states. The Regulation does not define how the certification should be done, so this is a national matter. If the NRA provides a monitoring mechanism for this purpose it should be considered as a certified monitoring mechanism according to Article 4(4) of the Regulation. As the Regulation talks about a monitoring mechanism certified by the NRA, the question of when to certify a monitoring system and how to certify can be considered to be up to an NRA according to the national legislation and circumstances
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P226
This section gives guidance on criteria NRAs could take into account when providing its own certified mechanism or certifying a third party mechanism in accordance with the Regulation and BEREC NN guidelines [3].
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P227
a) The certified measurement mechanism should fulfil the requirements specified in chapter 3 and take the considerations of chapter 5 into account.
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P228
b) The certified monitoring mechanism should be in compliance of the applicable legislation such as privacy rules.
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P229
c) End users should be enabled to make a straightforward comparison between measurement results and the contractual speed values.
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P230
d) The NRA is recommended to give guidance on in which cases a significant and continuous or regularly recurring difference is established by the certified monitoring mechanism. Noncompliance on a single indicator is sufficient to give the user the right to use “the remedies available to the consumer in accordance with national law”.
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P231
e) The NRA is recommended to ensure the integrity of the operation of the certified mechanism in case the mechanism is provided by a third party. It is also recommended to take into account the independence and business model of the entity providing the monitoring mechanism where it is not provided by the NRA itself.
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P232
[1] Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union,
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P234
[2] BEREC Guidelines for quality of service in the scope of net neutrality, November 2012,
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P236
[3] BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Rules, August 2016,
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