Ofcom has closed an enforcement programme that was setup to examine the Traffic Management practices of broadband ISPs and mobile operators, which was done to test compliance with the EU’s Open Internet Access (net neutrality) and Roaming Regulations. Instead they’ve published a framework to help providers “self-assess proactively.”
The rules are designed to protect the open internet from abuse (here), which in short means that network providers cannot impose excessive restrictions against internet traffic. Naturally there are some exceptions, such as for general Traffic Management purposes, security reasons (dealing with hackers, viruses etc.) and when tackling prohibited content (e.g. website blocks supported by court orders or laws etc.).
In the United Kingdom these rules are applied via a self-regulatory approach, which is governed by the Broadband Stakeholder Group (BSG) via their 2016 Open Internet Code. The code essentially commits signatory providers to neutrality and transparency in traffic management on their networks (details).
On top of that Ofcom has spent the past couple of years operating an initial enforcement programme to ensure compliance, which has helped to nudge a number of operators like Vodafone, Three UK and O2 to make some quite significant changes (here and here).
The regulator has now taken all of their learnings from the enforcement programme and produced a new framework document, which they say “encourages ISPs and CAPs to self-assess proactively their compliance with the net neutrality rules.” In short this proposes that providers should, when introducing new Zero Rating offers or Traffic Management practices, asses them against the following considerations.
NOTE: Ofcom said they will continue to monitor compliance with the rules and, where necessary, investigate any concerns that arise (e.g. after complaints are raised rather than proactively).
Ofcom’s Framework for Assessing Compliance
Step 1: Does the offer have the potential to limit and/or exclude end-users’ access to certain content/applications?
Any limiting by ISPs of their customer’s access to applications outside of the zero-rating offer has the potential to constitute a breach of Article 3(1). In addition, the BEREC Guidelines make clear that 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) would infringe Article 3(3).
If we find that an offer appears to limit or exclude end-user’s access to content or applications, Ofcom would consider opening a formal investigation. If no such exclusions appear to be present, we would move to Step 2.
Step 2. Does the offer appear to have the ability to influence end-users’ exercise of rights?
Offers which treat applications, or categories of applications, differently have the ability to lead to situations where end-users’ choice may be materially reduced. This is because zero-rating offers create an economic incentive to use one application or categories of applications.
Zero-rating offers which are not class-based (i.e. only one or two applications from a particular category are included) are more likely to “undermine the essence of the end-users’ rights” or lead to circumstances where “end-users’ choice is materially reduced in practice” than when the offer is applied to an entire category of applications. Closed offers have the potential to increase this effect further.
If we find that an offer has the potential to limit end-user choice and therefore the potential to contravene the Open Internet Regulation, further assessment is carried out under Step 3.
Step 3. Does the offer or commercial practice potentially create a situation where end-users’ choice may be materially reduced (or otherwise adversely affected) in practice?
Using the BEREC Guidelines, Ofcom has devised a list of questions (see document for all of these). These will be used to determine the impact of the offer on end-user rights. The questions, and the context provided, are not exhaustive and Ofcom may consider a wide range of factors when assessing whether end-users’ choice may be materially affected. The answers to the questions will be considered as a whole. If there is evidence that end-users’ choice may be materially reduced, Ofcom will give consideration to opening a formal investigation.
[see document for all the questions]