What is traffic management and what is “equal treatment”?
When end-users communicate via an Internet Access Service (IAS), data traffic is sent between the end-users’ terminals. The traffic is sent through the networks of the ISPs through which the end-users connect to the internet, as well as any intermediate networks. The way the traffic is forwarded in the networks is referred to as ‘traffic management’, which may include both regular first-come-first-serve management of traffic and more advanced ways of shuffling traffic through the networks.
When traffic is forwarded on a first-come-first-serve basis, this can be referred to as “equal treatment”. As the BEREC Guidelines explain, this does not necessarily imply that all end-users will experience exactly the same performance. But as long as any treatment of traffic is done independently of applications and end-users, the traffic is normally considered to be treated equally. Thus, the Open Internet Regulation and the BEREC Guidelines seek to preserve the end-to-end principle of the internet.
What traffic management is allowed under the Open Internet Regulation?
In the first place, the Open Internet Regulation allows offering internet access subscriptions with different QoS levels regarding parameters like speed, latency, jitter and packet loss. It is also possible to offer multiple application-agnostic QoS levels at the same time for a single subscription. These measures may not degrade the quality of other IAS subscriptions to a quality below the contract conditions.
This graph schematically illustrates possibilities to differentiate QoS levels:
The Open Internet Regulation allows for alternative traffic management under limited circumstances. As a second step, the Regulation allows “reasonable traffic management” which may be used to differentiate between “categories of traffic”. As a third step, the Open Internet Regulation describes three specific exceptions which are allowed under stricter conditions. These exceptions are:
- compliance with other laws;
- preservation of integrity and security;
- congestion management measures.
See further details below regarding the regulatory assessment of the traffic management described under these second and third steps.
How will regulators assess whether traffic management measures should be considered “reasonable”?
In order to be considered to be “reasonable", traffic management would have to be based on objectively different technical Quality of Service (QoS) requirements of specific categories of traffic. NRAs could ask ISPs about their use of traffic categories, such as which categories they implement; which QoS requirements they apply to each category; and which data packets are handled by each category. Based on the responses, NRAs could assess whether the traffic management practice in question complies with the requirements of the Regulation (specifically the second subparagraph of Article 3(3)).
BEREC considers that categories of traffic could be defined, for example, by reference to application layer protocol or generic application type, but only in so far as:
- this requires objectively different technical QoS;
- applications with equivalent requirements are handled in the same category; and
- the justification given is relevant to the category of traffic in question.
Furthermore, NRAs should ensure that such measures do not monitor specific content (i.e. anything from the transport layer protocol payload – in other words, specific content provided by the end-users themselves, such as text, pictures and video), and that by virtue of non-discrimination, encrypted traffic is treated on a par with traffic which is not encrypted.
How will regulators assess whether traffic management measures should be considered “exceptional”?
Article 3(3) third subparagraph sets out traffic management practices that are banned, and can be described by these seven basic principles which should be used by NRAs when assessing ISPs’ practices. Between specific content, applications or services, or specific categories thereof, there should be:
- no blocking;
- no slowing down;
- no alteration;
- no restriction;
- no interference with;
- no degradation; and
- no discrimination.
This rule refers to measures put in place by the ISP, in the network when providing an internet access service. Functionality that takes place at the destination of the IP address provided by the end-user computer is out of scope of the Open Internet Regulation.
Practices which do not comply with these seven basic principles, or that otherwise go beyond “reasonable traffic management” (as explained above), may be used by ISPs only when they fit into the three specific exceptions listed above: (a) compliance with other laws, b) preservation of integrity and security of the network, services or end-user terminal equipment or c) preventing exceptional network congestion. Under all these exceptions, the traffic management measure has to be necessary for the achievement of the exception in question and applied “only for as long as necessary”.