EU Pushes Net Neutrality

The European Commission has publicly re-iterated its support for the principle of “net neutrality” for the Internet. This refers to the idea that all data must be treated equally, regardless of what it is (web page, video, voice calling, etc.), how it is being used, and by whom. 

The Commissioner herself, Neelie Kroes, introduced this new Commission policy document, which was published on 19 April 2011.

What is net neutrality?

The “net neutrality” debate centres on the possibility that Internet Service Providers (ISPs) and telecommunications carriers could decide to restrict, or even block altogether, certain kinds of traffic, or create different levels of service (particularly regarding data transmission speed) at different price levels. Supporters of the “net neutrality” principle oppose all such restrictions and differentiation.

Transparency

According to the Commission, obtaining adequate information on possible limitations or traffic management enables consumers to make informed choices. Consumers have complained about the discrepancy between advertised and actual delivery speeds of internet connections. Transparency on the quality of service is therefore essential. Given the complexity and technical nature of internet offerings, a balance needs to be struck between simplicity and the provision of meaningful and appropriately detailed information.

Blocking or Throtttling of traffic

Blocking and throttling of lawful traffic are among the main issues raised in the Commission’s new policy document.

• Blocking can take the form of either making it difficult to access or outright restricting certain services or websites on the internet. A classic example of this would be mobile internet operators, blocking voice over internet protocol (VoIP)
• Throttling, which is a technique employed to manage traffic and minimize congestion, may be used to degrade certain type of traffic and so affect the speed or the quality of content, such as video streaming provided to consumers by a competitor

Concerns were also raised that blocking, though currently limited mainly to VoIP, could be extended in the future to other services, such as television broadcasting via the internet. Other potential issues include the risk that charging structures could favour big players, who may afford to pay for prioritisation while new entrants would be constrained to the slow lane. Reference has also been made to the risk that, if different operators block or degrade different services, consumers could have difficulty in accessing the services of their choice through a single internet subscription.

Traffic management

Good traffic management is required to ensure that the end user’s experience is not disrupted by network congestion and that there is a continuous data exchange. Traffic management is considered necessary to ensure the smooth flow of traffic, particularly at times when networks become congested.

There are different types of traffic management techniques:

• Packet differentiation allows different classes of traffic to be treated differently, for example for services which require real-time communication such as live streaming of audio or video events and VoIP. This differentiation guarantees a certain minimum quality of service to end-users

• IP routing allows Internet Service Providers (ISP) to route packets via different communication paths to avoid congestion or provide better services. For example, an ISP may route packets towards a server that contains a copy of the requested information which is located either in its network or somewhere close

• Filtering allows an ISP to distinguish between “safe” and “harmful” traffic and block the latter before it reaches its intended destination

A number of respondents also raised concerns about potential abuse of traffic management, for example, for the purposes of granting preferential treatment to one service over another, a practice that they would not consider justifiable if the services were similar in nature.

The 2009 reform package

The 2009 EU telecom reform package explicitly called for the preservation of the open and neutral character of the internet. To this end, a number of measures have been introduced:

• National telecoms regulatory authorities are required to promote the ability of end users to access and distribute information or run applications and services of their choice 

• When subscribing to a service and in case of any changes thereafter, consumers must be informed about conditions limiting access to and use of services and applications and procedures put in place by the provider in order to measure and shape traffic so as to avoid filling or overfilling a network link

• As regards switching of operators, consumers will be able to switch and keep their numbers within one working day.  The conditions and procedures for contract termination should not act as a disincentive against changing service provider

• National regulators have the power to intervene by setting minimum quality of service requirements for network transmission services and so guarantee a robust level of quality of service

The provisions of the revised EU regulatory framework must be transposed by the Member States by 25 May 2011. 

Next steps

Following the transposition by the Member States, the Communication anticipates that a certain period of time will be necessary for these provisions to be implemented, and to see how they will operate in practice.

The Commission also plans to look into a number of issues that were identified in the course of the consultation, such as barriers to switching, the practice of blocking and throttling, transparency and quality of service, as well as the competition issues relating to net neutrality.

The Commission has the right to assess under Articles 101 and 102 TFEU any behaviour related to traffic management that may restrict or distort competition. The Commission will publish, by the end of the year, all evidence gathered, including any instances of blocking or throttling.

On the basis of the evidence and the implementation of the telecom framework provisions, the Commission will decide, as a matter of priority, on the issue of additional guidance on net neutrality. It will also assess the need for more stringent legislative measures to enhance competition and consumer choice.