Ofcom Network Neutrality Update

Ofcom’s latest statement on Network Neutrality provides some more insight into their thinking about when it might be necessary to regulate the provision of Internet services. They see two different approaches to traffic management, which they believe should co-exist: managed services (for example prioritising delay-sensitive applications), and best-efforts internet access (which may still involve some traffic management if necessary to deal with congestion). There is repeated stress on the importance of open internet access for “innovation without permission”, and a recognition of the possibility that this could be degraded if ISPs use too much of their bandwidth for managed services. If this were to occur, the new European power to require a minimum quality of services could be used to ensure adequate provision of best-efforts internet.

However Ofcom do not see signs of this happening in the UK at the moment, though they “would ... be concerned if the current blocking of services by mobile operators remained both widespread and persistent”. Blocking of alternative services or discriminatory traffic management is considered “highly undesirable” and could be dealt with using existing competition law, which can be used to regulate technical or economic practices that limit access to the market. They note that walled gardens such as AoL and Compuserve – the purest form of managed service – have not been successful in the past.

The preference is clearly to ensure that the market works to protect network neutrality. This requires (a) informed customers who are (b) able to switch supplier. They therefore encourage the development of more accessible, and more easily compared, information for customers. This should include average speeds, any traffic management of particular services (such as peer-to-peer) and any blocking of particular services. The Broadband Stakeholder Group’s Key Facts Indicator is welcomed, but considered too technical for some customers. Any material changes to traffic management practices should be notified to existing customers, with information about how to switch supplier if they wish. Finally there is a suggestion that “internet access” may acquire a particular meaning in advertising, that anything advertised as “internet access” must “enable[e] the consumer to access any service lawfully available on the internet”.