This week, the Body of European Regulators for Electronic Communications (BEREC) issued a draft version of their Network Neutrality regulations for final six-week review and comment period before implementation. These regulations have some markedly different guidance for EU operators than the FCC’s in the US, but still leave operators the ability to manage their networks and offer differentiated offerings to the market. The regulations were designed to give national regulatory agencies (NRAs) in the EU a recommendation for a framework to evaluate the service offerings of their Internet Service Providers to ensure equal and non-discriminatory treatment of traffic to protect end user rights. Just as in the FCC order, throughput, packet loss and latency (including jitter) are highlighted as the key metrics for subscriber QoE.
The biggest potential impact and challenge for operators is the guidance on how they can manage their networks while still delivering a high quality of experience to their subscribers. Providing guidance and limitations on reasonable traffic management is the key portion of the BEREC draft. The focus is around application agnostic traffic management, specifically not allowing an operator to manage specific application traffic – whether as part of a defined service agreement or to improve the perceived QoE of the network – as part of their traffic management policies. The draft specifically states “When providing internet access services, providers of those services should treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment.”
This put some very specific limitations on how an ISP can technically manage congestion on their network. The draft calls out that the NRAs should take into account that equal treatment does not mean that all end users will experience the same QoE (which is a good thing since it would be impossible to guarantee this technically with these restrictions!) Three examples of scenarios that are prohibited are given in the draft:
- A practice where an ISP blocks, slows down, restricts, interferes with, degrades or discriminates access to specific content, one or more applications (or categories thereof), except when justified by reference to the exceptions of Article 3(3) third subparagraph.
- IAS offers where access to the internet is restricted to a limited set of applications or endpoints by the end-user’s ISP (sub-internet service offers) infringe upon Article 3(3) first subparagraph, as such offers entail blocking of applications and / or discrimination, restriction or interference related to the origin or destination of the information.
- A zero-rating offer where all applications are blocked (or slowed down) once the data cap is reached except for the zero-rated application(s), as it would infringe Article 3(3) first (and third) subparagraph.
The BEREC then gives further guidance on the characteristics of reasonable traffic management, something that the FCC’s guidelines did not specify: “In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary.”
There are some very specific nuances in this statement that are detailed in the draft that open up innovation and opportunities for network differentiation. The draft indicates that an operator can differentiate between “objectively different” categories of traffic – i.e. Video, gaming, web browsing, etc. – as long as the purpose is to optimize the overall quality and user experience “based on technical quality of service requirements (for example, in terms of latency, jitter, packet loss, and bandwidth) of the specific categories of traffic”. The draft follows this up with requirements that the ISP must be able to detail the traffic management rationale when implemented to the NRAs, and be transparent to the end user. Towards the end of the document, the draft suggests that NRAs should monitor that ISPs are correctly dimensioning their networks to avoid recurring network quality issues.
That is both a big technical challenge as well as a massive opportunity for a network operator. If you understand how your network is delivering QoE for different application types, and you can optimize your network to improve the QoE for these application types, you can differentiate your network from your competitors in the most important consumer metric of today – QoE (see here for our Survey on this topic). I won’t turn this blog into a commercial for Procera (This blog post is targeted to inform), but we can help you in this quest just as we have other operators in the US. The importance of building a “smart” network that is application aware (even with the rise of encryption on networks) and monitoring your subscriber’s QoE cannot be overstated for service providers today.
The draft lists a number of things that the operator should be able to provide the consumer detailing the service that they should expect from the network that are similar to the FCC’s broadband labeling initiative:
- Minimum speed
- Maximum speed
- Normally available speed (during off-peak and 90% of the time during peak)
- Advertised speed
- Estimated maximum speed (for mobile networks where this is more challenging)
If the operator does not deliver on these advertised service levels, the draft empowers the NRAs to seek remedies under national law. It is obviously in the operator’s best interests to get ahead of the curve and put in place their own system for tracking these metrics as soon as possible, and make them transparent as suggested by the draft. The draft states that the NRAs should publish results on an annual basis for each operator.
Zero-rating is also specifically called out in the draft as something that could both a positive consumer service as well as an inhibitor to consumer choice. If a service zero-rates a specific application and then limits other traffic once a data cap is hit, that type of offering is prohibited by the draft. If a specific application is zero-rated versus other applications of the same type (i.e. music streaming or video streaming), it creates an economic incentive for the consumer to use that application and “materially limits” consumer choice, and should not be allowed. If a service zero-rates all traffic from a specific application type (like all video streaming applications), then consumers are incentivized to use that application type, and the NRA should evaluate that service to determine if it is materially affecting end user choice. This type of service does not seem to be specifically prohibited by the draft, but left to an individual NRA to determine the impact on their consumers.
The BEREC draft also tightens guidance on a topic that the FCC order left open around managed services. The draft specifies that other services can be offered over the network which are not Internet access services (like managed service offerings) only if they do not impact the quality that will be delivered by the IAS services. Examples of this might be a video streaming service or an IoT offering for enterprises that require specific levels of bandwidth or quality that would not be possible over the IAS infrastructure. The specific concern is that these service offerings would be used to circumvent the BEREC guidelines, so the draft guides the NRAs to monitor these type of services closely and deny them if they should be delivered as an IAS offering. They do call out specific examples of allowed offerings – VoLTE, specialized IPTV services, and real-time public health services – that are in the public’s interest, and they acknowledge that they can’t predict what services may come in the future that may be desirable in this area. Specifically called out in the draft are also enterprise VPN services, which they consider to be specialized services, but which should also comply with the non-interference/priority over the IAS services. This is a challenge for the NRAs to evaluate, but again the operator must be able to demonstrate the quality that they are delivering to their IAS customers even if they are offering VPN services.
There are a few other items in the guidelines that deserve mention. There is a prohibition on restricting tethering services (since this would limit terminal choice for consumers. There is also a restriction on “sub-internet” services that restrict access to different applications (like VOIP or video streaming) through a commercial service offering, and the BREC specifically calls these out as in violation of their regulations (They make exceptions for services like e-readers or IoT devices that are designed to only access specific internet services). Unlawful content can be blocked based upon national regulations (for example the UK requirements to implement the Internet Watch Foundation list to protect against child pornography). There is an exploration of how when implementing network protection (from DDOS attacks for example) it is acceptable to block or restrict traffic only as long as necessary to stop network attacks.
The BEREC draft limits European operators that were using application plans or OTT partnerships as a competitive differentiation. However, it opens up new opportunities for operators that can deliver high quality services by building out a smart infrastructure that exceed consumer QoE expectations within the BEREC framework. It will be critical for operators to have strong QoE measurements on their networks, and be clear on exactly what service is being delivered to their end users.