"Is that all clear?"
Promoting consumer transparency in the net neutrality debate
The general trend that appears to be emerging, both in the UK and abroad, is that use of traffic shaping, prioritisation of some content or content providers over others, promotion of tiered internet access packages, etc (i.e. factors that are theoretically incompatible with the concept of "net neutrality") are acceptable provided that the position is made clear to consumers such that they are able to make an informed choice at the time that they sign up for any services.
This can be of particular importance given the tendency for ISP's to offer consumers fixed term contracts, typically for 12 month terms.
In the UK, this is largely enforced through the use of the general law together with industry Codes of Practice. We set out below a few of the recent examples of initiatives in this area.
Broadband Speeds and Quality of Service
In May 2011, Ofcom published a short statement on implementing the revised EU Framework for Electronic Communications (which the EU Commission has previously suggested may be enough to ensure open access and a sufficiently neutral network). Page 8 of the statement provides that: 'the Communications Act will be revised by 25 May 2011 to provide us with the new powers in relation to traffic management. These include the ability to set a minimum quality of service for broadband.'
Ofcom is currently understood to have no plans to take advantage of these new powers, preferring instead to rely upon the existing requirements in its Voluntary Code of Practice on Broadband Speeds.
Most of the UK's largest ISPs are currently signatories to the Code, which among other things requires ISPs to explain to new customers the access line speed they are likely to obtain in practice, and to attempt to resolve problems for those customers whose access line speed is significantly below the estimate provided.
A strengthened version of this came into force on 27 July 2011, which requires that ISPs provide estimates to a common methodology in the form of a range (e.g. download speeds in the range 8 to 10 MB), and gives consumers the right to exit the contract if actual speeds are significantly lower than the range.
Additionally, earlier in 2011 'Ofcom recommended to CAP and BCAP, the committees that write the advertising codes enforced by the Advertising Standards Authority, that a Typical Speeds Range (TSR) should be included in advertisements by ISPs who advertise based on the speed of the service.' The ASA has not yet come back on its plans for this sector, but it appears regulation may come in the advertising regulatory area.
In parallel with the Voluntary Code of Practice on Broadband, in March 2011 the Broadband Stakeholders Group published a voluntary code of practice on traffic-management for broadband services. Signatories to this code reportedly now account for almost 95% of fixed-line broadband and over 90% of mobile customers in the UK.
The code defined "traffic management" as being the range of technical practices undertaken to manage traffic across networks. The different outcomes achieved by the use of technical practices are stated to include:
- the prioritisation of certain types of traffic in busy times or busy areas to ensure that it is of an adequate quality
- the slowing down of certain traffic types that are not time-critical at busy times or busy places
- ensuring compliance with a consumer’s contract, for example slowing down of traffic for the heaviest users
- supporting the delivery of managed services, for example to ensure a guaranteed quality of service for a specific piece of content.
The code includes three core commitments:
- to provide more information to consumers about what traffic management takes place, for what purpose and with what impact.
- to comply with a set of good practice principles on providing information to consumer that is: understandable; appropriate; accessible; current; comparable; and verifiable.
- to publish a common key facts indicator (KFI) table, summarising the traffic management practices they use for each broadband product they currently market.
The code is being piloted in 2011 with a view to reviewing it again in 2012.
It is interesting to note the importance being placed upon self-regulation by means of these voluntary codes of practice. This is to be contrasted with the general telecoms sector, where sector-specific regulation of what has traditionally been seen as a highly technical area has been the norm, and there have clearly been different philosophies at play as far as how telecoms and telecoms operators have been regulated compared with the Internet in general.
Inevitably the success of such measures will be determined by how well the industry responds, especially in the context of codes that are by definition voluntary rather than mandatory. However the indicators so far are good, and it will be interesting to see whether this "light touch" approach can be maintained into the future.
"In a break with traditional practice in the telecoms sector, consumer transparency in the areas of broadband speeds, traffic management, etc is being driven by voluntary codes of practice rather than sector-specific regulation."
"Inevitably the success of such measures will be determined by how well the industry responds especially in the context of codes that are by definition voluntary rather than mandatory."