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Commission urged to force transparency on network traffic shaping

'Be open about it if you're paid to prioritise content'

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The European Commission has been told that it should force companies to define themselves either as neutral internet service providers or as "managed services" that give priority to content providers that they are in a business relationship with.

The Commission has published the findings of a consultation (6-page / 140KB PDF) on "net neutrality", the principle that internet service providers (ISPs) should deliver all content equally to their subscribers.

Though the governments, companies, trade bodies and consumer associations that responded did accept that ISPs had to engage in some "traffic shaping" to ensure a fair division of resources to users, some said that the Commission should force companies to declare any business interests they had in prioritising traffic.

"Several respondents are concerned about new internet business models causing net neutrality problems in the future, and have asked the Commission to provide clarity on the distinction between the 'best-efforts' internet and 'managed services'," said a Commission statement outlining its findings.

"Many [respondents] advocate further dialogue between industry, national regulators and the Commission in order to agree on EU-wide transparency principles [on traffic shaping] and a set of standardised information," said the Commission's report on the results of the consultation.

"However, a broad range of stakeholders as well as individuals consider that transparency by itself would not be sufficient to allay current and future net neutrality concerns, especially in light of the difficulties that consumers can face when switching network provider," it said.

ISPs engage in traffic shaping, or traffic management, to ensure that one user's heavy use of a network for downloading material does not prevent another user of that network from being able to perform basic tasks such as sending or receiving email or looking at web pages.

The consultation found that users saw this activity as reasonable but feared abuse of it for commercial ends.

"There is consensus among respondents, even those that had previously alluded to blocking of P2P [peer to peer] or VoIP [voice over internet protocol] services, that traffic management is a necessary and essential part of the operation of an efficient internet," said the report. "They agree that its use for the purposes of addressing congestion and security issues is entirely legitimate and not contrary to the principles of net neutrality."

"Nevertheless, some respondents consider that abuse of traffic management by certain operators for the purposes of, for example, granting preferential treatment to one service over another, would be unacceptable, particularly where the services are similar in nature.

The telecoms framework package adopted by the EU's governing bodies last year aims to ensure that net neutrality exists, but respondents to the consultation said that they could not assess how successful those measures were likely to be until they had been applied at national level.

There was a split in the attitude of respondents to what action should be taken to distinguish networks that are paid to prioritise content and those that treat all content equally.

"Operators and ISPs argue that they should be allowed to determine their own business models and arrangements with other commercial parties," said the report. "In contrast, others, in particular content providers, argue that the distinction between managed services and the best efforts internet is unclear at present."

"For this group, a level playing field is essential, in which any managed services are offered to all content and application providers on equal terms and without discrimination. [EU telco regulators' committee] BEREC is concerned about potential anti-competitive effects of such services and about their longer-term impact on the best efforts internet," said the report.

"There is general agreement that additional regulatory measures on managed services would not be required at the present time. However, a number of respondents call upon the Commission to provide a definition of managed services in its guidance, while many advocate an industry-led code of conduct as a way of ensuring fairness and non-discrimination in this area," it said.

Net neutrality has proved controversial in the US, where opponents have said that internet subscribers deserve access to the full internet, not just the parts belonging to companies that have paid their ISP a fee.

O2 chief executive Ronan Dunne said last week that mobile networks should be paid by content producers for carrying their material.

"Isn’t it fair to ask those big companies that are fuelling the data surge to help make a contribution to the infrastructure? If consumers alone are paying for the data there is no incentive on content providers to use networks efficiently," he told a Westminster eForum last week.

See: The report (six-page / 140KB PDF) here.

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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