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Net neutrality: requirement for equal treatment of internet traffic does not mean users must experience the same quality of service

Internet service providers (ISPs) do not need to ensure that the quality of service received by internet users is the same across all of their customers to meet their obligations on treating data equally as it passes over their networks, an EU regulatory body has said.07 Jun 2016

The Body of European Regulators of Electronic Communications (BEREC) has produced new draft guidance that sets out how new EU net neutrality rules should be implemented by telecoms regulators.

Net neutrality is the principle that ISPs will deliver all content requested by customers equally, and where the speed and quality of content delivered to customers is not dictated by the price content producers are willing to pay ISPs for preferential treatment of their content as it passes over an ISP's network.

EU net neutrality laws that came into force in April give internet users the right to "access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service". ISPs must "treat all traffic equally".

Notwithstanding those requirements, however, the regulations permit ISPs to implement "reasonable traffic management measures" which are "transparent, non-discriminatory and proportionate", such as blocking or throttling the delivery of content requested by users of their network, for reasons such as preserving the integrity and security of the network or combatting network congestion.

In its draft guidance, BEREC said that ISPs will not necessarily breach their obligations on equal treatment of traffic if individual customers experience differences in service.

"NRAs (national regulatory authorities) should take into account that equal treatment does not necessarily imply that all end-users will experience the same network performance or quality of service (QoS)," BEREC said. "Thus, even though packets can experience varying transmission performance (e.g. on parameters such as latency or jitter), packets can normally be considered to be treated equally as long as all packets are processed agnostic to sender and receiver, to the content accessed or distributed, and to the application or service used or provided."

BEREC's draft guidance, which is open to consultation until 18 July, also explained that ISPs that apply traffic management measures permanently might fall foul of the new net neutrality rules.

It said it might be necessary for traffic management measures to be applied "several times, or even regularly, over a given period of time", but it said that "where traffic management measures are permanent or recurring, their necessity might be questionable". In those cases BEREC said regulators should "consider whether the traffic management measures can still be qualified as reasonable" as is required under the EU legislation.

Although the EU net neutrality rules prevent paid prioritisation of content delivery online, they do not prevent ISPs from entering into agreements to deliver certain content, applications or services at "optimised" quality in certain circumstances.

That optimisation must be "necessary … to meet requirements of the content, applications or services for a specific level of quality" and the provision of such services must have no detrimental impact on "the availability or general quality of internet access services" ISPs otherwise provide.

BEREC said telecoms regulators should implement a system of verification to check whether individual applications could be provided over an ISPs' general internet service "at the agreed and committed level of quality" rather than via an optimised service. Regulators should also check if the stated quality requirements for applications are "plausible" or if they have been "set up" to circumvent the traffic management rules, it said.

BEREC's guidance also explained the approach regulators should take when assessing "zero-rating practices", which is where ISPs do not count internet users' use of specific applications or categories of applications when applying caps on data use. It said it is more likely that ISPs that apply zero-ratings to individual applications would not comply with the net neutrality regime than if zero-ratings were applied to a broader category of applications.

"When assessing such agreements or commercial practices like zero-rating … NRAs and other competent authorities should take into account the aim of the Regulation to 'safeguard equal and non-discriminatory treatment of traffic' and to 'guarantee the continued functioning of the internet ecosystem as an engine of innovation' as well as Recital 7, which directs NRAs and other competent authorities to intervene against agreements or commercial practices which, 'by reason of their scale, lead to situations where end-users’ choice is materially reduced in practice', or which would result in 'the undermining of the essence of the end-users’ rights'," BEREC said.

BEREC said regulators should take account of the market positions of ISPs and content providers when assessing whether their agreements are in line with competition principles and the net neutrality rules, and should check whether internet users' choices are limited by any "commercial and technical conditions" laid out in the agreement or by the ISPs' "commercial practices".

"It is not the case that every factor affecting end-users’ choices should be considered to limit the exercise of end-users’ rights," BEREC said. "Such restrictions would need to result in choice being materially reduced for this to qualify as a limitation of the exercise of the end-users’ rights."

BEREC said other checks regulators might carry out include on what impact agreements or commercial practices like zero-rating have on "the range and diversity of content and applications" content providers offer and that are accessed, as well as whether other content providers are "materially discouraged from entering the market or forced to leave the market, or whether there are other material harms to competition in the market concerned". It also said zero-rating or similar practices on a large scale, particularly where "few alternative offers" are available in the market, "is more likely to limit the exercise of end-user rights".

Expert in telecoms law and net neutrality regulations Diane Mullenex of Pinsent Masons, the law firm behind Out-Law.com, said: “The net neutrality guidelines proposed by BEREC have not proven universally popular. Net neutrality supporters, such as the Save the Internet group, are concerned about ‘paid fast-lane for big internet companies’, the amount of discretion ISPs have with regards traffic management measures and the impact zero-rating has on lowering data caps."

"At the International Bar Association telecom and antitrust conference in Amsterdam this week regulators discussed at great lengths zero-rating issues. The Netherlands implemented net neutrality rules before the EU regime was introduced and has one of the most stringent net neutrality frameworks in the world” and the regulator has very strong views on prohibiting zero rating until a court rules otherwise," she said.

In its draft guidance BEREC said that it would not consider the net neutrality rules to apply to "Wi-Fi hotspots", such as those provided by cafes and restaurants, "since they typically are limited to customers of an enterprise rather than the general public". In contrast it said the net neutrality rules would apply to traffic delivered over virtual private networks (VPNs), such as those used by businesses.

"To the extent that VPNs provide access to the internet, they are not a closed user group and should therefore be considered as publicly available ECS (electronic communications services) and are subject to [the net neutrality regulation]," it said.