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Thursday, November 24, 2011

Ofcom three wise monkeys: competition/switching mantra even for recalcitrant ISPs

Ofcom is still claiming that self-regulation and switching will solve its problems - but has toughened its language towards blocking-by-other-means. Oddly, I am writing this while Nigel Hickson in Vienna admits the UK claims far too much that self-regulation solves everything on the Internet!
Am i being unfair? Some Ofcom underwhelming edited 'highlights':

1.10 In particular, if ISPs offer a service to consumers which they describe as 'internet access', we believe this creates an expectation that this service will be unrestricted, enabling the consumer to access any service lawfully available on the internet. As a result, if a service does not provide full access to the internet, we would not expect it to be marketed as internet access. [Expect?!] 1.11 It is possible that providers may seek to market a restricted service as 'internet access' by caveating this with a description of the restrictions they have put in place. Consideration needs to be given as to whether this practice is acceptable. [CM: Consideration? By Ofcom? They don't say]
1.13 If there are material changes in traffic management policies once a consumer has purchased a service, ISPs should provide an update as quickly as reasonably possible. If these have a significant impact... we also encourage the ISPs to provide the consumer with the option of switching to another package or another service provider, and provide information to consumers as to how they can exercise this choice. [CM: Encourage?]
1.14 We do not describe what more detailed information might be provided, over and above the desired outcomes set out above. We note, however, that the self-regulatory model recently proposed by major ISPs provides a good foundation. [CM: They go on to explain that the BSG implementation work is embryonic, a tissue, hence] 1.17 We will monitor progress, and keep under review the possibility of intervening more formally in order to ensure that there is sufficient transparency as to the use of traffic management by network operators.
1.22 From the perspective of protecting the citizens' interest alone it will be important to be vigilant in relation to the core connectivity of the 'best-efforts' open internet and the access to information and services which it provides. It is important to note however that we see no concerns in this regard in the UK at present. [CM: How about blocking BBC services? Not enough for Ofcom? then what is?]
1.27 There is, however, a risk that network operators prioritise managed services in a manner that leaves insufficient network capacity for 'best-efforts' access to the open internet. If the quality of service provided by 'best-efforts' internet access were to fall to too low a level, then it may place at risk the levels of innovation that have brought such substantial benefits during the internet's relatively short life so far. This would clearly be a significant concern. 1.28 If there was sufficient reason for concern in relation to this issue then we would need to consider intervening [CM But no 'dirt road' test provided, notably for mobile]
1.29 Any use of a minimum quality of service would need to be considered carefully, balancing the benefits of such an intervention against the associated risks. We are not, at present, aware of any actual concerns which would merit carrying out such an assessment. However, given the importance of 'best-efforts' access to the open internet for innovation, we will keep this issue under review. [CM: Three wise monkeys seeing no evil].
1.30 We will do so as part of the process for reporting on the state of the UK's communications infrastructure...We will use this to keep under review whether there is a case for intervention. [CM: Ofcom will not actively investigate]
1.31 There is also a concern that service innovation would be hindered if providers of internet access blocked services, or applied traffic management in a manner that discriminated against competing providers. As well as being a general concern, there is also a specific current concern that some mobile operators already block services provided by some competing providers. 1.32 We do not have a general objection to models of competition where vertically integrated operators do not provide open access to their networks, provided that there is genuine competition and rivalry among the firms. In such circumstances, we do not necessarily regard the blocking of services provided by competing providers, or discrimination against competing services, as being anti-competitive. We do however have a specific concern in the context of the discussion in this document that restricted access to the internet could have a stifling effect on innovation. 1.33 Our stance as a regulator is therefore that any blocking of alternative services by providers of internet access is highly undesirable... we expect such traffic management practices to be applied in a manner which is consistent within broad categories of traffic. Where providers of internet access apply traffic management in a manner that discriminates against specific alternative services, our view is that this could have a similar impact to outright blocking. 1.34 We recognise that any regulatory intervention in this area must be based on careful consideration of the risks of unintended consequences, and we recognise that the market is dynamic. Our current view is that we should be able to rely on the operation of market forces to address the issues of blocking and discrimination. [CM: Ofcom will not take any formal action to stop blocking, even in the medium term].

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