Though the decision has been claimed by supporters of fair share as a win, it's unclear if it will change the course of a debate that has generally faded in Europe
The District Court of Cologne has ordered Meta to pay Deutsche Telekom €20m in owed fees
On 14 May 2024, the District Court of Cologne in Germany published its decision on a lawsuit filed by Deutsche Telekom (DT) against Meta regarding a dispute over IP transit terms. The Court, which sided with DT, has ordered Meta to pay over €20m (£17m) in outstanding fees for the platform’s continued use of the operator’s private interconnections. Despite announcing its intent to end its long-standing contract for private interconnections with DT in 2020, the court found that Meta continued to use these channels and interact similarly with DT as it had during the course of the prior contractual agreement. The platform was therefore found liable for the value of the contracted annual fees from 2020 onward, an amount agreed upon in 2010 when the agreement was first established. Meta is expected to appeal the decision to the Higher Regional Court of Düsseldorf, if not the Federal Court of Justice, likely delaying any final outcome or wider implications of the ruling for years to come.
The court upheld DT’s claim in full, finding that Meta had acted in bad faith when it assumed the existence of an unwritten peering agreement
DT originally filed a lawsuit in 2022, arguing that since 2020 (when its contract with Meta had ended), the platform had continued to use the private interconnections established under the prior agreement without payment. Though the operator announced in 2020 that it would continue to transmit data from the platform’s services for the good of consumers and the public in the interim, DT argued that Meta’s ongoing use of these transmission channels implied a continuation of the terms of the contract, including an annual fee of approximately €5.8m (£5m). In its defence, Meta claimed that its continued transmission of data was occurring under an assumed settlement-free peering agreement, citing common practice in the industry. Meta further claimed that DT was abusing its market power by attempting to enforce paid IP transit agreements, given its significant control over the market for access to end users. The court upheld the operator’s claim in full, both denying that DT was exploiting its market power and rejecting Meta’s claim of an unspoken peering agreement as a “bad faith” assumption.
Fair share proponents are claiming a victory, though the practical implications of the decision are less obvious
Though the decision largely revolved around the specific context of a contract termination, the decision has been heralded as a positive outcome for telecoms operators by proponents of ‘fair share’ or a sending party pays model. DT has characterised the decision as showing “that network operators in Europe may very well demand payment from large internet companies for data transport” and denounced the idea that operators “will always have to go to court in the future in order to enforce the payment of a valuable service”. Despite this enthusiasm and increased debate elsewhere in the world, proposals for fair share in Europe have lost momentum in recent months, with attention in the sector shifting towards market consolidation and extending symmetric regulation to tech firms competing in communications markets. It’s unclear the extent to which this decision will have a meaningful impact on fair share proposals in Europe, either in reviving enthusiasm for public debate or in establishing a legal precedent on which to develop policy.
