European Consultation on net neutrality - draft answers

The EC consultation is much broader than Ofcom's - anyone care to compare the Dutch and ARCEP consultations too?
Here's some draft answers for the EC:

PUBLIC CONSULTATION ON THE OPEN INTERNET AND NET NEUTRALITY IN EUROPE

Responding to the consultation by 30 September 2010.

Policy Development Unit (B1), BU33 7/40

DG Information Society and Media

Email: INFSO-NETNEUTRALITY@ec.europa.eu

Question 1: Is there currently a problem of net neutrality and the openness of the internet in Europe? If so, illustrate with concrete examples.

Yes, declared by operators themselves, reported by end-users, noted by content providers (e.g. Norwegian state broadcaster, Skype VOIP on mobile, BBC iPlayer throttled by British Telecom, Deutsche Telekom threats to throttle video and so on).

These are recorded in great depth in my blog e.g. http://chrismarsden.blogspot.com/2010/03/telefonica-and-d-telekom-aggressively.html

Where are the bottlenecks, if any?

End-user acess but also at handover points between ISPs.

Is the problem such that it cannot be solved by the existing degree of competition in fixed and mobile access markets?

Yes, because it is ISPs as a class that fear commodization by content providers and prosumers. This point eliminates the attempts by Ofcom and others to portray the problem as one of market entry and Significant Market Power – it is a problem caused by the n-sided market. ISPs can act as roadblocks or traffic cops, but they cannot innovate or provide solutions for end-users. Putting a cash register on the consumer Internet is a zero-sum game that ISPs win, but that everyone else loses (consumers, prosumers, content providers, innovation in the digital economy, society through net public welfare losses).

Question 2: How might problems arise in future? Could these emerge in other parts of the

internet value chain? What would the causes be?

The major problem may not lie with end-users but with traffic management as between ISPs. This is more likely where there are wide disparities in traffic volumes – e.g. ISP A hosts a Content Delivery Network (CDN) for a video provider and has much more outgoing traffic, ISP B is almost entirely a consumer ISP and thus receives more incoming traffic. In this situation, ISP B (which might be the wholesale arm of the former incumbent, or a mobile operator) will throttle at the handover point, not at the end-user’s connection. Its an obvious incentive problem and the forensics required to track and prove any discrimination are fiendishly difficult using 2010 technology.

Question 3: Is the regulatory framework capable of dealing with the issues identified,

including in relation to monitoring/assessment and subsequent enforcement?

No – even though it is a step forward on consumer rights.

Question 4: To what extent is traffic management necessary from an operators' point of

view? How is it carried out in practice? What technologies are used to carry out such traffic management?

[1] ISPs must filter spam and content that is otherwise malicious – this is widely accepted and for the vast majority of consumers and their ISPs, it is uncontroversial. It generally requires only shallow packet inspection to check headers in datagrams.

[2] Deep Packet Inspection for behavioural advertising and mandatory filtering on behalf of public policy objectives (cf. Malmstrom draft Directive, UK Cleanfeed/CAIC list, Nordic suicide-watch sites) are highly damaging to privacy and responsibility of end-users, and outright break the end-to-end principle.

Question 5: To what extent will net neutrality concerns be allayed by the provision of

transparent information to end users, which distinguishes between managed services on the one hand and services offering access to the public internet on a 'best efforts' basis, on the other?

Very little – in fact, effective transparency will result in consumer outrage at the throttling of their legitimate traffic and calls for more regulation will follow.

Question 6: Should the principles governing traffic management be the same for fixed and mobile networks?

Yes, of course. Otherwise, the same distortions will appear that have jeopardized mobile termination for voice calls over the past 20 years. That experience was disastrous – do we want to repeat it? 

Question 7: What other forms of prioritisation are taking place? Do content and application providers also try to prioritise their services? If so, how – and how does this prioritization affect other players in the value chain?

CDNs, as noted above, are a content provider response to lags and jitter in Internet delivery, but also to costs associated with ISPs’ hosting of their services. Content providers are by no means all equal.

Question 8: In the case of managed services, should the same quality of service conditions and parameters be available to all content/application/online service providers which are in the same situation?

Yes, subject to FRAND rules that would reinstate our long historical experience of common carriage. These are public communications networks, after all.

May exclusive agreements between network operators and content/application/online service providers create problems for achieving that objective?

Yes, clearly. Toll roads affect state roads significantly, by diverting investment and overcharging so preventing optimal traffic loading.

Question 9: If the objective referred to in Question 8 is retained, are additional measures

needed to achieve it?

Yes, NRAs need to be encouraged by the CEC to engage with operators in discussing what FRAND rules will look like, as in an interconnection RIO.

If so, should such measures have a voluntary nature (such as, for example, an industry code of conduct) or a regulatory one?

It must be mandatory – whether co-regulatory or regulatory.

Question 10: Are the commercial arrangements that currently govern the provision of access to the internet adequate, in order to ensure that the internet remains open and that

infrastructure investment is maintained? If not, how should they change?

No – peering agreements between Tier 1 and other ISPs are subject to a very large degree of discrimination. It is long overdue that regulators shone a light into the opacity of this area, which has not been effectively examined since WorldCom/Sprint in 2001.