UK Regulator Ofcom 2023 Review Net Neutrality
At the end of October UK Telecom Regulator, Ofcom published their review statement on Net Neutrality, with additional commentary on key topics of debate in 2023 and clarifications on how UK regulation aligns with European legislation. The comprehensive statement provides the basis and guidance for moving telecom services into 2024 without compromising the cornerstone of net neutrality which has enabled the e xpansion and accessibility of internet services. It also offers
insight into how the UK regulator is moving comparing to the EU Regulation. The biggest changes are that ISP’s can offer premium quality retail offers, develop specialised services and use traffic management tools to manage their networks and mobile data access (the traffic in this case being mobile data access between subscriber and open internet).
In brief summary:
The EU (BEREC) and UK (Ofcom) regulation allow the use of Traffic Management for:
- Non-discriminatory optimization of access for network efficiency, e.g. accelerate traffic flows without restrictions
- Optimize and manage delivery of types of content during congestion without app/provider differentiation.
- Comply with laws and preserve integrity and security of the network.
In more contrast to the EU, Ofcom (UK) has revisited and relaxed regulation somewhat allowing:
- Premium Quality Services, e.g. improve subscribers’ quality of service for an additional subscription fee
- Deliver specialized services that require optimization.
- Zero-rate content for public/social services (type 1) or services open to all users (type 2)
- Service-based offerings that do not differentiate across content providers.
In respect of services new retail (premium) offers can be created with differing price points and quality levels – if the user is informed, and the offer is open to all customers. In addition, specialised internet services for different industry verticals can be offered. If the service can be demonstrated to be sufficiently different from normal internet usage and there is sufficient network capacity, then it will be a candidate to be permitted.
The area of zero-rating was examined with Ofcom taking a more open approach; section 5 of the statement details the revision and considerations of this. Acknowledging this in the report, Ofcom states in the summary “Most zero-rating offers will be allowed” with guidance on the rules for assessment. It also states that it, and UK courts, whilst not being required to follow BEREC and CJEU ruling may continue to have regard for them if considered appropriate.
Highlighting the gatekeeper position ISP’s for network access and neutrality there is a focus on revising traffic management (data management for the network) to be used to deal with congestion and improve quality of experience for all (section 6), specifically in the role of network management and, not for commercial gain. The overall intent is the preservation of network integrity and good quality of service.
In a more nuanced discussion on how traffic is identified, categorized and tagged is the essential pre-cursor to managing it was not resolved; with concerns on different approaches either being inconsistently adopted, inaccurate, or not possible due to encryption and VPN technology. As a specialist in traffic classification for mobile data, our view is that encrypted traffic classification and management is consistently achievable and the constantly improving heuristics allow our capabilities to keep pace with the large content provider protocol changes.
In respect of clarification of relationship between Ofcom and European Regulator BEREC for net neutrality, the statement notes that where new alignment and text has been created by Ofcom. For example, Ofcom have collated and adopted guidance on VPN from BEREC and added new text on “safeguarding open internet access”.
The detailed Ofcom statement and Annexes offer a comprehensive review for 2023 and forward guidance on interpretation. The use of tools to manage the network, the clarification on new specialised services and zero rating allowing more business freedom to the ISPs in the face of increasing traffic volume and business pressures.
The influence this report has within the EU in 2024 remains to be seen.
EU Regulator BEREC – Body of European Regulators for Electronic Communication – https://www.berec.europa.eu/en
CJEU – Court of Justice European Union https://european-union.europa.eu/institutions-law-budget/institutions-and-bodies/search-all-eu-institutions-and-bodies/court-justice-european-union-cjeu_en
Enea Traffic Management Products & Solutions: https://www.enea.com/solutions/traffic-management/