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Euro watchdog: Telcos ARE strangling VoIP and P2P traffic

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EU telecoms companies are commonly using 'traffic management' practices to block Voice over IP (VoIP) traffic and peer-to-peer (P2P) file-sharing activity online, an EU regulator has said.

The Body of European Regulators of Electronic Communications (BEREC) said it had established the "common" use of the practices as part of its "preliminary findings" in analysing data on traffic management collected from approximately 400 telecoms operators across the EU. BEREC is made up of representatives from each of the national telecoms regulators in the 27 EU countries, including Ofcom in the UK.

"The most frequently reported traffic management practices are the blocking and/or throttling of peer-to-peer (P2P) traffic, on both fixed and mobile networks, and the blocking of Voice over IP (VoIP) traffic (mostly on mobile networks, usually based on specific contract terms). When blocking/throttling is implemented in the network, it is typically done through deep packet inspection (DPI)," BEREC said in a statement.

Internet service providers (ISPs) sometimes block or slow down users' access to some content during busy periods on their networks. This is 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. However, ISPs can also benefit from this kind of traffic management by charging content providers who are willing to pay for preferential access to their subscribers or by charging users more for fewer restrictions.

The use of traffic management techniques has been probed by regulators as a result of its close association to the ongoing debate on net neutrality.

Net neutrality

The net neutrality debate has been most lively in the US, where telecoms companies have said that content producers should share the cost of network building and maintenance. Opponents of that view claim that subscribers' fees to ISPs should buy them access to all information equally, not to a service in which some content is prioritised because of deals between ISPs and content producers.

BEREC said that approximately 250 fixed and 150 mobile operators had responded to its data collection exercise and that the results had also shown an emerging picture of "very diverse commercial and/or technical" traffic management practices "being used by European operators in the different national markets".

The regulator said:

BEREC has found a very wide range of practices across Europe, and an equally wide range of implementation methods and policy justifications for them.

About one-quarter of respondents provide justifications for certain traffic management practices based on what could be described as 'security and integrity' concerns (eg, controlling "spam" traffic) – though some of these traffic management measures are best described as congestion management techniques. For instance, in relation to congestion management, some operators use an 'application-agnostic' approach (eg, active buffering), while others use 'application-specific' techniques (typically in order to throttle specific traffic, such as video streaming).

About one-third of the fixed operators manage their networks in order to offer specialised services (for the provision of facilities–based applications, eg, telephony or TV) alongside a (public and best efforts) internet access service. BEREC also found a wide variety of data caps and 'fair use' practices - these were not the main focus of its investigation, since (with some exceptions) in general they do not imply differentiated treatment of traffic.

The regulatory body said that it is currently "validating, consolidating and categorising the data" it has collected and plans to report on its finalised findings before July. It said it also plans to report on "competition issues" around net neutrality as well as issue "one set of guidelines on minimum quality of service requirements" for consultation this summer.

EU law

In the EU there are no explicit laws on net neutrality, but changes to the Framework for Electronic Communications Directive set out certain requirements for national regulators to promote the concept.

Under the Directive, EU member states must ensure that national regulatory authorities "take all reasonable measures" proportionate to "promote the interests of the citizens of the European Union by ... promoting the ability of end-users to access and distribute information or run applications and services of their choice".

Other rules set out in the Universal Services Directive must ensure ISPs provide consumers with "comparable, adequate and up-to-date information for end-users on the quality of their services" as well as "transparent and up-to-date" details on prices, tariffs and contractual terms and conditions.

Under the Directive regulators can choose whether or not ISPs should be required to maintain a minimum quality of service.

BEREC has previously said that providing consumers with transparent information about the quality and restrictiveness of their internet service is "fundamental" if net neutrality is to be achieved. BEREC's view is that national regulators must ensure that ISPs provide consumers with accessible, understandable, meaningful, comparable and accurate information in order to allow them to make "informed choices" about services.

In the UK Ofcom has threatened to impose minimum quality standards but has so far decided they are not required. In November last year Ofcom said it accepted that some traffic management techniques are necessarily used by ISPs to ensure an efficient service, but said that ISPs must leave enough spare network capacity to deliver a 'best efforts' service, where access is generally "open" and "equal" for users.

In its report on its approach to net neutrality, Ofcom said that it is happy to rely on the market to ensure that traffic management is legitimate and not discriminatory or anti-competitive. However, it said that strategy was dependent on ISPs being transparent with consumers "as to the nature of the services they offer".

The regulator said that ISPs are not currently providing users with enough information about their service and the traffic management they carry out. ISPs should provide consumers with information containing details about the average speed of their service, how traffic management may impact upon "specific types of services" and be up front about what "specific services" are blocked "resulting in consumers being unable to run the services and applications of their choice," Ofcom said.

Copyright © 2012, OUT-LAW.com

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

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