VON Europe - Comments To European Commission's Public Consultation On Specific Aspects of Transparency, Traffic Management and Switching in An Open Internet

Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet
October 2012
Voice on the Net Coalition Europe Kreupelstraat 33 1703 Dilbeek (Brussels) Belgium
Registration number: 96615638697-36
by VON Europe, August 2012
The Voice on the Net Coalition Europe (VON) welcomes the opportunity to comment on European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (hereafter the Consultation). Question 1: I answer as: g) Association of Internet content and applications providers Question 2: (a) Please provide a brief description of your organisation and of your interest in open Internet issues. (b) If your organisation is registered in the Transparency Register, please indicate your Register ID number. (c) Please provide the postal and e-mail address of your organisation and, if you wish, the name of a contact person (including telephone number and e-mail address) for any questions on your contribution. (d) In which Member State(s) are you established and where do you perform your activity? (a) The Voice on the Net (VON) Coalition Europe was launched in December 2007 by leading Internet communications and technology companies, on the cutting edge to create an authoritative voice for the Internet-enabled communications industry. Its current members are iBasis, Google, Microsoft, Skype, Viber, Vonage, Voxbone and WeePee. The VON Coalition Europe notably focuses on educating and informing policymakers in the European Union and abroad in order to promote responsible government policies that enable innovation and the many benefits that Internet voice innovations can deliver. (b) Registration number: 96615638697-36 (c) Postal address: Voice on the Net Coalition Europe, Kreupelstraat 33, 1703 Dilbeek (Brussels) Belgium. Contact person: Herman Rucic, VON Europe, by phone (+32 (0)478 966701) or email (hrucic@voneurope.eu). (d) VON Europe is established in Brussels, but its Members are active at an international level.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet 1.1 Traffic management and differentiation Question 3: Please explain briefly which traffic management techniques are usually applied by network operators or ISPs and how they are technically implemented. VON would first like to point out that it will, in its response to this question, take traffic management in its broadest sense, i.e. as encompassing both legitimate and harmful practices. First, VON would like to put this question in its current context: there is no question that the Internet has experienced tremendous growth in traffic volumes in its history, including in recent years. However, the rate of growth is declining, whilst the increase in capacity is forecasted to be able to handle the volumes appropriately. At the same time, the costs of upgrading and maintaining both fixed and mobile networks are falling to such levels that such capacity increases will continue to be manageable. VON considers that traffic management for the purposes of combating spam, security attacks or punctual exceptional measures to alleviate congestion are useful and should not be contested as such, as long as they remain proportional and not harmful.1 Traffic management has always taken place in the Internet and VON considers there is no issue for Internet Service Providers (ISPs) to fairly use network management to overcome technical challenges and maintain a high quality Internet service for their customers. However, this freedom to manage the network should not be seen as an alternative to sustained network investment to meet large increases of capacity, which has characterised the Internet since day 1.2 Furthermore, traffic management should not be a license for ISPs to behave in anti-competitive and other harmful ways, such as blocking legitimate content and applications or unreasonably degrading services. Such practices are often based on commercial motivations and are harmful both to endusers (both users and content, applications and services providers)3 and innovation generally. VON
A point also made by the BEREC in its draft QoS Guidelines, p. 6, both as regards congestion and network security and integrity management. See BEREC. (2012). Draft BEREC Guidelines for Quality of Service in the Scope of Net Neutrality (BoR(12) 32). Retrieved at, http://berec.europa.eu/files/news/bor_12_32_guidelines.pdf. 2 The Canadian Radio-television and Telecommunications Commission (CRTC) has very specifically stated in its Review of the Internet traffic management practices of Internet service providers: 36. The Commission notes that investment in network capacity is a fundamental tool for dealing with network congestion and should continue to be the primary solution that ISPs employ. However, the Commission considers that investment alone does not obviate the need for certain ITMPs, which may be used to address temporary network capacity constraints and changing network conditions, as well as for service innovation. See CRTC. (2009). Review of the Internet Traffic Management Practices of Internet Service Providers. Retrieved at, http://www.crtc.gc.ca/eng/archive/2009/2009-657.htm 3 For the sake of clarity, VON refers to the following concepts set forward in the BERECs draft Report on assessment of IPinterconnection in the context of net neutrality: Content and application providers (CAPs) create and aggregate content (e.g. webpages, blogs, movies/photos) [and] applications (e.g. search engines, messaging applications) (p. 11) and CAUs
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet therefore considers that the European Commission and the BEREC should ensure that all end-users can continue to use the Internet applications, services and devices of their choice and access the content of their choice, as mandated by Article 8(4) g of the Framework Directive (FD) and that the principle of end-to-end connectivity set out under Art. 8(3) g FD is preserved.4 The European Commission and BEREC should therefore resist any attempts, whether regulatory, commercial or competitive, to block or hinder unfettered access to Voice over IP (VoIP) (or similar technologies) and more generally to all legal Internet content, applications and services, including their underlying technology, and that prevents VoIP from being utilised to its full potential. VON believes that this objective is best achieved by clearly setting out principles for reasonable traffic management in line with the recommendations put forward by the French regulator ARCEP, whereby traffic management practices should comply with general principles of relevance, proportionality, efficiency, non-discrimination between parties and transparency.5 Question 4: Congestion management is one of the reasons for applying traffic management measures. (a) Please describe briefly how congestion management normally works. (b) If possible, please provide a definition and examples of genuine congestion management measures, i.e. measures which are necessary to avoid or tackle network congestion, as opposed to measures which may be called congestion management but actually pursue other purposes. (a) Network congestion is the situation in which an increase in data transmissions results in a proportionately smaller increase, or even a reduction, in throughput. Congestion results from applications sending more data than the network devices (e.g. routers and switches) can accommodate, thus causing the buffers on such devices to fill up and possibly overflow. A buffer is a portion of a devices memory that is set aside as a temporary holding place for data that is being sent
are both, residential (private) users and business users of a broadband/Internet access in their function of passively consuming content (p.12), read in conjunction with the clarifications provided on p.9, namely that actual players will usually perform different combinations of functionalities (e.g. content and applications users may at the same time provide content and applications) along the value chain. See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf. 4 Though VON understands the BERECs point in its draft QoS Guidelines on p. 10 that these articles should be read as setting goals, not as being tools in themselves, it is important that these goals be proactively pursued by BEREC and its members and that the QoS Guidelines ensure that all available tools are used to achieve these goals in the most effective and immediate manner. Leaving the current status quo certainly seems to contradict these policy objectives. See BEREC. (2012). Draft BEREC Guidelines for Quality of Service in the Scope of Net Neutrality (BoR(12) 32). Retrieved at, http://berec.europa.eu/files/news/bor_12_32_guidelines.pdf. 5 See ARCEP. (2010). Internet and Network Neutrality: Proposals and Recommendations. p. 24. Retrieved at, http://www.arcep.fr/uploads/tx_gspublication/net-neutralite-orientations-sept2010-eng.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet to or received from another device. This can result in delayed or lost packets, thus causing applications to retransmit the data, thereby adding more traffic and further increasing the congestion. (b) Various methods exist to manage and minimize congestion: increasing capacity, data compression, and protocols to inform transmitting devices about the current levels of network congestion and have them reroute or delay their transmissions according to congestion levels. Transparency and pricing based on bandwidth capacity used are also powerful tools. Indeed, users that are informed ab initio of traffic management measures and possibly in real time of their consumption might adjust their behaviour and hence help alleviate congestion. Genuine congestion management is aimed at providing a solution at network level to such increases of data transmission, by either affecting all traffic flows or the flows of certain users, but should always remain application-agnostic. van Schewick gives in her white paper on network neutrality and quality of service as an example the fact that: During times of congestion, a network provider could give one person a larger share of the available bandwidth than another, for example because this person pays more for Internet access or has used the Internet less over a certain period of time. But it could not throttle the bandwidth available to a specific online video application (e.g., BitTorrent or YouTube) or to online video in general.6 Academic research does however highlight that the congestion rationale is often used to justify ISP traffic shaping on file-sharing traffic, but if the practice involves blocking without user choice this should then be classified as unreasonable.7 It is also worth noting that the French regulator ARCEP conducted in its recent draft Report to the Parliament and Government on Internet Neutrality8 an analysis of congestion and cost of upgrading of networks and concluded that: The increase of traffic has been substantial but the ratio of increase is currently flattening out.9 The costs supported on the fixed access network (copper local loop in this case) are about 13 per subscriber per month (about 90% of the network costs). These costs barely increase in
See van Schewick, B. (2012). Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like. p. xi. Retrieved at, http://cyberlaw.stanford.edu/downloads/20120611-NetworkNeutrality.pdf. 7 See Jordan, S. (2010). A Framework for Classification of Traffic Management Practices as Reasonable or Unreasonable. ACM Transactions on Internet Technology, 10(3), 1-23. p. 15. Retrieved at, http://www.escholarship.org/uc/item/3ng6r1fw. 8 See ARCEP. (2012). Projet de Rapport au Parlement et au Gouvernement sur la neutralit de lInternet. Retrieved at, http://www.arcep.fr/uploads/tx_gspublication/20120516-projet-rapport-neutralite-internet.pdf. 9 See ARCEP. (2012). Ibid. p. 14
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet relation to traffic. The costs supported by collecting and transit networks currently represent about 1,4 per subscriber per month. Part of these costs related to active equipment increases with the increase of traffic. Between an average subscriber and a subscriber with an intensive consumption (three times above average), this increase is only about 30 to 40 cent per subscriber per month in the case of an operator using unbundling, and can reach 1,20 per month on a bitstream connection bought from France Telecom.10 The ARCEP hence concludes that these results (...) show that at the end of the day, costs increase relatively little in relation to the increase of traffic. A consumption multiplied by three only induces an increase of 2 to 3% of network costs related to Internet access.11 The ARCEPs finding in terms of traffic growth is confirmed by the graph below, and noted by WIK Consult: In the past, traffic as a whole grew more than 100% annually a decade ago, but has since slowed down to a more moderate pace () the absolute volume of traffic is increasing, but the rate of traffic growth is clearly declining. Global IP traffic is expected to grow from a volume of 20 Exabytes per month in 2010 to a volume of 80 Exabytes per month in 2015, but the annual rate of growth of IP traffic is expected to decline to 27% by 2015. () The projected increase in mobile data is substantial; once again, however, the percentage growth rate declines sharply over time Furthermore, mobile data traffic of 6,254 Petabytes per month in 2015 will represent only about 8% of total traffic of 80,456 Petabytes per month. This is a substantial increase from today's mobile share of slightly less than 2% of total IP traffic in 2011, but still represents a declining rate of traffic growth.12
10 11
See ARCEP. (2012). Ibid. p. 20 our translation. See ARCEP. (2012). Ibid. p. 21 our translation. 12 See Marcus, J. S., & Monti, A. (2011). Network Operators and Content Providers: Who Bears the Cost?. p. 26. Retrieved at http://ssrn.com/abstract=1926768.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Similarly, on the costs side, the Plum Report on the open Internet also confirms that for fixed networks traffic related costs are low, falling on a unit basis and likely to fall overall given declines in traffic growth and on-going cost-reducing technical progress, whilst for mobile access they are higher but nevertheless declining on a unit cost basis.13 In summary, although traffic growth continues, its pace is declining, and it should not pose a problem to cope with it. Importantly, without this increase in consumer demand for Internet access, Internet access providers would see their market and revenues shrink. As the Chairman of Vodafone Sir John Bond commented:14 Data has been the key driver of growth over the last year. Our customers around the world are increasingly drawn to the experience of the mobile internet and related services. Organic data revenue growth was 26.4% achieved through combining increasingly disciplined pricing structures with a broad range of devices and a network with a deserved reputation for market-leading speed and reliability. US operator Verizon also explained the relationship between revenue growth and data growth as follows: () with our 4G launch and the speeds that 4G give and the proliferation of video and content consumption through mobile handset, we see usage starting to be on an escalating scale () then ARPU will start to accrete because people will start to use more, they will start to buy the higher tiers () 15 It is therefore crucial that innovation in Internet content, applications and services is protected, so that consumer demand for Internet access remains high. Without this demand, the whole ICT ecosystem would suffer. The respect of open Internet principles would achieve this protection and encouragement of continued Internet-based innovation.
13
See Williamson, B., Black, D., & Punton, T. (2011). The Open Internet A Platform for Growth. A Report for the BBC, Blinkbox, Channel 4, Skype and Yahoo!. p. 17ff. Retrieved at, http://www.plumconsulting.co.uk/pdfs/Plum_Oct11_The_open_internet_-_a_platform_for_growth.pdf. 14 See Bond, J. (2011). Chairmans Statement. Retrieved at, http://www.vodafone.com/content/annualreport/annual_report11/business-review/chairmans-statement.html. 15 See Verizon. (2011, 10 August). Oppenheimer & Co. Technology & Communications Conference - Final Transcript. p. 3. http://www22.verizon.com/investor/investorconsump/groups/events/documents/investorrelation/event_ucm_5_trans.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 5: Please provide your views on the following ways/situations where traffic management may be applied by ISPs .Are traffic management measures: (a) applied to deliver managed services (e.g. to ensure a guaranteed quality of service for a specific content/applications)
necessary appropriate X problematic

Please explain your response A starting point in the approach to traffic management and net neutrality should always be the desire and duty to preserve and promote an the open Internet, a goal that is now mandated for NRAs under the revised Framework Directive in Article 8(4) g.16 Looking more specifically at managed services, VON believes it is important to stick by the principle that managed services should be understood as services that are separate from Internet access. If looked at in this manner, managed services can be offered by ISPs provided that they do not discriminate in a way that is anticompetitive, creates barriers to innovation, or harms end-users and consumers using ISPs non-managed Internet access services. More specifically, VON considers that safeguards are necessary to ensure the quality of Internet access, in order to avoid a dirt road effect, in parallel to the possibilities for operators to offer managed services. This point is also being raised in a recent Report from the French Parliament, which states that the quality of the public Internet could quickly degrade because of the important growth in data streams, if Internet access providers were not to invest in their networks or were to give priority to the commercialisation of managed services.17 VON considers that the differentiation proposed by the French regulator ARCEP between Internet access and managed services offers an interesting possibility, as long as managed services are allowed to be offered by ISPs together and/or beside the best efforts Internet, and provided that they do not discriminate in a way that is anticompetitive, creates barriers to innovation, or harms
16
Article 8(4) g of the Framework Directive: () promoting the ability of end-users to access and distribute information or run applications and services of their choice. 17 See Erhel, C., & De La Raudire, L. (2011). Rapport dinformation sur la neutralit de linternet et des rsaux. p. 10. Retrieved at, http://www.assemblee-nationale.fr/13/pdf/rap-info/i3336.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet end-users and consumers using ISPs non-managed Internet access services.18 If such discrimination occurs, enforcement should occur by regulators on a case-by-case basis. It should also be made clear that operators should continue to invest in improving the infrastructure underlying the best efforts Internet, and not just the infrastructure underlying their managed services, so that the Internet does not become a dirt road, a clear risk to diminish the social and economic value of the Internet. (b) taking into account the sensitivity of the service to delay or packet los

Please explain your response Voice over IP (VoIP) is particularly sensitive to degradations in network performance (especially in terms of latency requirements), and because of its reliance on peer-to-peer (P2P) in some cases, it can be faced with various network management impediments put in place by access operators. VoIP and video communications can be especially harmed by temporarily delaying sessions using peer-to-peer or other applications and protocols, due to their reliance on a steady stream of realtime communication packets.19 Limiting or delaying a VoIP session or video communication can be tantamount to blocking, that is negating a users ability to communicate. Even when VoIP packets are delayed a mere 250 milliseconds, the lag is noticeable and impedes speech communications. (c) used to implement or manage compliance with the explicit contractual restrictions (e.g. on P2P or VoIP) of the Internet access product accepted by the user

Please explain your response The findings from the BEREC and the European Commissions joint investigation on traffic management has demonstrated that practices affecting individual applications or protocols such as VoIP and Peer-to-Peer are commonplace.20
18
See ARCEP. (2010). Internet and Network Neutrality: Proposals and Recommendations. p. 27ff. Retrieved at, http://www.arcep.fr/uploads/tx_gspublication/net-neutralite-orientations-sept2010-eng.pdf. 19 This is not to say that VoIP or video calling requires guaranteed QoS indeed, real time communications work well on the Internet when it is not subject to harmful traffic management. There is therefore no legitimate reason for that type of traffic to be harmfully and arbitrarily tampered with. 20 See BEREC. (2012). A View of Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe. Findings from BERECs and the European Commissions Joint Investigation (BoR (12) 30). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/BoR12_30_tm-snapshot.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet VON believes that the European Commission and BEREC should ensure that network operators are prohibited from creating barriers to entry to over-the-top players, ranging from blocking, throttling or charging for the fact that their services, applications or content runs over their network, while there is absolutely no evidence of free riding, quite the contrary, as the BEREC considers that users at the edges (i.e. subscribers and over-the-top players) of the Internet each pay for their own connections.21 More specifically, from VONs perspective, the fact that some network operators ask subscribers to pay a surcharge to use VoIP applications on mobile phones is a clear abusive practice, notably when considering that: (1) subscribers and content and application providers have both paid for their use of the network and (2) many of the VoIP applications are actually available for free or at a minimal charge. VON would like to emphasise the following points: 1. There is no reasonable traffic management justification to block or hinder VoIP traffic or ask for a surcharge, and hence such practices should be explicitly prohibited by the BEREC and its members as clear examples of distortion of competition.22 We note that instant messaging is already in line to be subjected to the same type of discriminatory treatment, as evidenced by the announced intention of WhatsApp in the Netherlands (which led to the adoption of net neutrality legislation) and statements such as the one made by AT&Ts CEO in 2012: Apple iMessage is a classic example. If youre using iMessage, youre not using one of our messaging services, right? Thats disruptive to our messaging revenue stream.23 2. Moreover, as VoIP is particularly sensitive to degradations in network performance (especially in terms of latency requirements), and because of its reliance on peer-to-peer (P2P) protocols in some cases, it can be faced with various network management impediments put in place by ISPs. Additionally, because the predominant VoIP protocols used today all generate P2P traffic (including SIP, H.323, and Skypes own P2P protocol among others), they are at risk of being blocked or degraded as a result of blanket anti-P2P measures imposed by operators, even though they do not inherently involve file transfers or intellectual property issues. For
21
See BEREC. (2012). Draft Report on Differentiation Practices and Related Competition Issues in the Scope of Net Neutrality. p. 17 (Paragraph 61). Retrieved at http://berec.europa.eu/files/news/bor_12_31_comp_issues.pdf. 22 See BEREC. (2012). Draft Report on Differentiation Practices and Related Competition Issues in the Scope of Net Neutrality (BoR (12) 31). par. 25 p. 9 and the demonstration of the static and dynamic harm initiated by VoIP foreclosure in par. 227 to 230, pp. 48-49. Retrieved at, http://berec.europa.eu/files/news/bor_12_31_comp_issues.pdf. 23 Quoted at http://stopthecap.com/2012/05/07/hissyfitwatch-att-ceo-mad-at-himself-for-ever-allowing-unlimited-useplans/.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet example, P2P has been used in the research and academic worlds for useful and legitimate purposes (e.g. for the Berkeley Universitys SETI project that connected the computing power of thousands of users to analyse astronomical data, or as used by the European Nuclear Research Council). (d) targeting types/classes of traffic contributing most to congestion

Please explain your response VON considers that the best approach to manage congestion is the one we set out in our response to sub question (g) below. (e) targeting heavy users whose use is excessive to the extent that it impacts on other users

Please explain your response VON considers that the best approach to manage congestion is the one we set out in our response to sub question (g) below. (f) applied during busy times and places, when and where congestion occurs

Please explain your response VON considers that the best approach to manage congestion is the one we set out in our response to sub question (g) below. (g) affecting all applications/content providers in the same way (application-agnostic)

Please explain your response VON considers that an application agnostic approach can function if it is the user that decides, and not the ISP acting as a gatekeeper. van Schewick, for example, develops the concept of user-controlled Quality of Service, whereby network providers make different types of service available equally to all applications and classes of
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet applications and where users choose whether and when to use which type of service.24 She considers this approach to be the only one that responds to what she has identified as the three guiding principles required to safeguard net neutrality and the open Internet, namely: (1) applicationblindness, (2) user choice and (3) innovation without permission.25 As an illustration of such an approach van Schewick states that: For example, a network provider could offer a low-delay service, a best-efforts service, a less than-best-efforts service, and a guaranteed-bandwidth service. The decision of whether and when to use which service would be left to the user. For example, one user could use the low delay service for Internet telephony, another may use it for online gaming, and a third user may use it for e-mail, if that is what that user wants. This type of user-controlled Quality of Service is technically feasible.26 VON agrees with such a user-centric non-discriminatory approach and considers that the European Commission and BEREC should set in place the needed principles and safeguards to deliver such a result, which seems to equate to the BERECs definition in its draft Guidelines on quality of service (QoS) of prioritised IAS27 and its statement that it may be relevant to prohibit application-specific restrictions on a general basis.28 Such principles could be seen as a form of minimum qualitative QoS, more detailed quantitative QoS being set separately.
24 25
See van Schewick, B. (2012). Ibid. p. xiii. More in detail, van Schewick (2012: xiii) points out that: First, they preserve the application-blindness of the network: The provision of Quality of Service is not dependent on which applications users are using, but on the Quality-of-Servicerelated choices that users make; thus, the network providers does not need to know anything about which applications are using its network in order for this scheme to work. The network provider only makes different classes of service available, but does not have any role in deciding which application gets which Quality of Service; this choice is for users to make. As a result, network providers cannot use the provision of Quality of Service as a mechanism to distort competition among applications or classes of applications. Second, since users choose when and for which applications to use which type of service (in line with the principle of user choice), they can get exactly the Quality of Service that meets their preferences, even if these preferences differ across users or (for a single user) over time. Third, in line with the principle of innovation without permission, an innovator does not need support from the network provider in order for his application to get the Quality of Service it needs. The only actors who need to be convinced that the application needs Quality of Service are the innovator, who needs to communicate this to the user, and the user, who wants to use the application. This greatly increases the chance that an application can get the type of service it needs. 26 See van Schewick, B. (2012). Ibid. p. 56. Van Schewick (2012: 58) does note that such an approach does not imply regulatory forbearance as a network provider who is allowed to charge for Quality of Service has an incentive to degrade the quality of the baseline, best-effort service to motivate users to pay for an enhanced type of service. To mitigate this problem, the rules should require the regulatory agency in charge of enforcing the network neutrality rules to monitor the quality of the baseline service and set minimum quality standards, if the quality of the baseline service drops below appropriate levels. 27 See BEREC. (2012). Draft BEREC Guidelines for Quality of Service in the Scope of Net Neutrality (BoR(12) 32). p. 40. Retrieved at, http://berec.europa.eu/files/news/bor_12_32_guidelines.pdf. 28 See BEREC. (2012). Ibid. p. 59.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (h) affecting (similar) applications/content providers of the same category in the same way

Please explain your response VON would like to draw the European Commissions attention to the risks that a like treatment approach poses. Treating classes of applications differently for arbitrary reasons can have a harmful effect, notably if they can be seen to compete with other classes, particularly if these are provided directly by the network operator. As pointed out in van Schewicks paper:29 The positive stance towards forms of Quality of Service that provide like treatment is based on the assumption that discriminating among classes of applications that are not alike is socially harmless and should therefore be allowed. As this paper shows, this assumption is not correct. In many cases, discrimination among classes of applications hurts some classes of applications, even if the classes are not alike. For example, some Internet applications such as Internet telephony applications, Internet messaging applications or Internet video offerings compete with network-provider services that are sold separately from Internet access and do not run over the Internet-access portion of the network provider's access network. In these cases, discriminating against all applications in that class allows the network provider to favor its own offering without discriminating among applications within the class. Moreover, applications in a class can be harmed by differential treatment even if they do not compete directly with applications in other classes that are treated more favorably.
29
See van Schewick, B. (2012). Ibid. p. xii. More specifically, van Schewick (2012: 50) describes the following situation : For example, network providers usually like the idea of providing low-delay service to online gaming. Some online games are sensitive to delay, and charging the gamers for low-delay service would allow network providers to capture some of the value that online gamers realize from gaming. By contrast, network providers seem to be less interested in providing low delay service to Internet telephony applications like Skype or Vonage, since this would make these applications more competitive with the network providers own telephony offerings. Thus, a network provider may decide to offer low-delay service only to online gaming, but not to Internet telephony, arguing that these are different classes of applications because gaming and telephony are different uses of the Internet. Internet telephony providers would argue that the correct class is applications that are sensitive to delay, but their view would not matter until they had brought a complaint and succeeded in convincing the regulatory agency.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (i) used, without other grounds, against services competing with the ISPs own services

Please explain your response First, VON would like to add used, without other legitimate grounds, as excuses can be found to justify blocking or otherwise degrading competing services, but such excuses should stand the test of proportionality, fairness and reasonableness. Traffic management should not be a license for network operators to behave in anti-competitive and other harmful ways, such as blocking legitimate content and applications or unreasonably degrading services that users have paid to access when taking a data subscription. Such practices are often based on commercial motivations and are harmful to end-users (both users and content, applications and services providers) and innovation generally. VON therefore considers that the European Commission should ensure that all end-users can continue to use the Internet applications, services and devices of their choice and access the content of their choice, as mandated by Article 8(4) g of the Framework Directive (FD) and that the principle of end-to-end connectivity set out under Art. 8(3) g FD is preserved. The European Commission and BEREC should therefore resist any attempts, whether regulatory, commercial or competitive, to block or hinder unfettered access to Voice over IP (VoIP) (or similar technologies) and more generally to all legal Internet content, applications and services, including their underlying technology, and that prevents VoIP from being utilised to its full potential. (j) implemented at the full discretion of the ISP

Please explain your response As full discretion could be motivated or translate in any or all of the behaviours set out in the previous questions, we refer you to our answers to sub question (a) and (i) above. More generally, VON considers that harmful and unjustified traffic management practices breach the end-to-end connectivity principle of the Telecoms Package enshrined in Article 5 of the Access
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Directive (2009/140/EC),30 the principles set out in Recital 28 of the revised Universal Service Directive (USD) (2009/136/EC).31 (k) other differentiation criteria (please specify) VON has no comments. Question 6: The use of managed services may affect the Internet access service in some cases, due to the sharing of access resources. (a) Please explain the impact of managed services on the standard Internet access service ("best effort") in terms of available bandwidth and quality of service. (b) Please explain whether it is possible to offer separate capacity for managed services and the standard Internet access service. If yes, please provide information on the circumstances (costs, technologies) of separating them.
(a) It is very important to clearly differentiate between Internet access on the one hand, and
managed services on the other. The latter should not be seen as a subset of the other, but as an entirely different product sold by the ISPs, and the former should not be considered as a reduced version that only covers certain services (e.g. email, etc.). As pointed out in the BERECs draft Report on differentiation practices: a lower quality best effort may reduce incentives of existing or new entrants to provide improved content and applications. This is critically important in the case of the Internet given the dynamic nature of innovation on the supply side.32 VON also considers that safeguards are necessary to ensure the quality of Internet access, in order to avoid a dirt road effect,33 in parallel to the possibilities for ISPs to offer managed services. This point is also being raised in a recent Report from the French Parliament, which states that the quality of the public Internet could quickly degrade because of the important growth in data streams,
30
It must be noted however that Article 5 applies to access and interconnection issues, which would not cover many issues faced by content, service or applications providers faced with abusive behaviour by an ISP or mobile operator. 31 End-users should be able to decide what content they want to send and receive, and which services, applications, hardware and software they want to use for such purposes, without prejudice to the need to preserve the integrity and security of networks and services. A competitive market will provide users with a wide choice of content, applications and services. National regulatory authorities should promote users ability to access and distribute information and to run applications and services of their choice, as provided for in Article 8 of Directive 2002/21/EC (Framework Directive). Given the increasing importance of electronic communications for consumers and businesses, users should in any case be fully informed of any limiting conditions imposed on the use of electronic communications services by the service and/or network provider. Such information should, at the option of the provider, specify the type of content, application or service concerned, individual applications or services, or both. Depending on the technology used and the type of limitation, such limitations may require user consent under Directive 2002/58/EC (Directive on privacy and electronic communications). 32 See BEREC. (2012). Draft Report on Differentiation Practices and Related Competition Issues in the Scope of Net Neutrality. p. 43 (par. 203). Retrieved at http://berec.europa.eu/files/news/bor_12_31_comp_issues.pdf. 33 See BEREC. (2012). Ibid. p. 58 (par. 283).
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet if Internet access providers were not to invest in their networks or were to give priority to the commercialisation of managed services.34 It should therefore be made clear that operators should continue to invest in improving the infrastructure underlying Internet access, and not just the infrastructure underlying their managed services. (b) VON has no comments. Question 7: The use of managed services may affect the Internet access service in some cases, due to the sharing of access resources. (a) Please give examples of "new business models" which could be developed on the basis of managed services by (i) Network operators/ISPs: (ii) Content providers (on the basis of agreements with ISPs): (b) How important are these innovative business models likely to become in the next three years? Please substantiate your view by means of available forecasts or studies. (c) What would be the expected benefits in terms of innovation and investment through new businesses (content or applications) benefitting from guaranteed levels of quality of delivery through managed services? VON has no comments. Question 8: What are likely positive and negative effects of certain traffic management practices on the Internet ecosystem, in particular on innovation and investment, by (i) network operators/ISPs and (ii) content providers? Please explain your view and, if appropriate, distinguish between different traffic management practices. The Internet ecosystem is characterised by a virtuous cycle whereby all actors in the chain benefit: Over-the-top Internet content providers (including users, public services, businesses across the economy, etc.) bring innovative content, information, applications and tools to the global public through the Internet; These innovations motivate continued and renewed consumer demand for (better, faster) broadband Internet access; This content-driven demand from consumers provides the return on investment for telecom operators, hence the basis for further investment in Internet-supporting infrastructure; and,
34
See Erhel, C., & De La Raudire, L. (2011). Rapport dinformation sur la neutralit de linternet et des rsaux. p. 10. Retrieved at, http://www.assemblee-nationale.fr/13/pdf/rap-info/i3336.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Upgrades in Internet infrastructure provide new opportunities for over the top providers to develop new online content, applications and services, thus fuelling the cycle again. As regards traffic management practices by content providers, we refer you to our answer on the benefits of content delivery networks (CDNs) in question 24 (b). As regards traffic management practices by network operators/ISPs, VON has identified the following (non exhaustive) list of incentives for harmful discrimination on the Internet that are detrimental to both content, application and services providers and users: First, there is discrimination by ISPs that aims at favouring their own services, those of subsidiaries (in case of vertically-integrated providers) or a preferred partner, on the Internet, or that is intended to block or degrade services, content, and applications that are considered as potential competitors for their own offerings. These discriminatory practices are illustrated through the following reported cases: 2005: American Internet provider Madison River (a small US ISP) blocks the traffic of Internet telephony service Vonage. It is evident that the blocking is intended to favour its own telephony services, stifling competition. After this comes to light, the Federal Communications Commission (FCC) intervened;35 2007: UK mobile operators Vodafone and Orange remove the Voice over IP (VoIP) features from the Nokia N95 handsets;36 2009: Mobile operator Vodafone Italia puts in place Peer-to-Peer (P2P) and VoIP caps on Internet traffic, by capping this traffic on 64 Kbit/s on its mobile network from 7 AM to 10 PM;37 2009: In Germany, Deutsche Telekom announces that it will block Skype, on iPhone in particular. That same year, T-Mobile Germany announced that it will block Skype traffic on smartphones with a mobile Internet connection, and that it considers blocking Skype through its WiFi hotspots.38 Since then and due to customer reactions, T-Mobile charges
35
See Marsden, C. (2010). Net Neutrality: Towards a Co-regulatory Solution. London: Bloomsbury Academic. p. 35ff. Retrieved at, http://techrisk.se/wp-content/uploads/books/NetNeutrality.pdf. 36 See Ray, B. (2007). Orange and Vodafone cripple Nokias flagship: N95 comes with VoIP disabled. The Register. Retrieved at, http://www.theregister.co.uk/2007/04/18/n95_crippled/. 37 See Vodafone. (n.d.). Informazioni sulle condizioni di utilizzo dei servizi Internet in mobilit. Retrieved at, http://www.areaaziende.vodafone.it/190/trilogy/jsp/programView.do?tk=9610,c&channelId=8671&contentKey=48195&programId=12545&ty_key=az_uso_equo_servizio_internet_mobilita&pageTypeId=9610&ty_skip _md=true. 38 See Handelsblatt. (2009). Telekom plant Skype-Blockade fr iPhone und Blackberry. Retrieved at, http://www.handelsblatt.com/technologie/it-tk/mobile-welt/telekom-plant-skype-blockade-fuer-iphone-undblackberry/3145006.html.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet its users an extra 10 euro/month for the right to use VoIP on their mobile devices. Similarly, Vodafone Germany charges an extra 5 euro/month for the right to use VoIP; 2010: Swedish mobile operator TeliaSonera blocks VoIP and P2P-traffic, according to the advertisements on their website;39 2010: French mobile operator SFR sells iPad subscriptions without access to P2P, VoIP and newsgroups, although it is not clear whether these are only contractual or also technical restrictions;40 2010: French Internet provider Free restrict P2P, SSH and VoIP services on ADSL. According to Free, all ports and/or protocols which are not standard are blocked in the afternoon, such as SSH, streaming videos, VoIP, and P2P;41 2011: In the meantime multiple Swedish mobile operators Telenor, TeliaSonera, and Tele2 are introducing barriers to the use of VoIP applications;42 and, 2011: Mobile operator Vodafone Italia charges its users an extra 8 euro/month for the right to use VoIP applications of their choice.43 2012: TeliaSonera announces44 its intention to release its charging structure for mobile VoIP calls in August. TeliaSoneras Spanish mobile operator, Yoigo, already piloted the model charging their subscribers 6 euros per month for 100MB of VoIP traffic. In general, we also refer you to VONs spreadsheet listing contractual and in some cases technical blockings by ISPs in the EU, as well as surcharges required to enable VoIP on mobile networks.45 Although non exhaustive, this document paints a rather grim picture in terms of VoIP availability in the EU on mobile networks.
39 40
See Telia. (n.d.). Surfa i mobilen. Retrieved at, http://www.telia.se/privat/produkter_tjanster/mobilt/surfaimobilen/. See SFR. (n.d.) Forfaits Internet pour Tablettes, iPad, Cls 3G+. Retrieved at, http://www.sfr.fr/mobile/forfaitsinternet.jspe?#onglet2. 41 See Numerama. (2010). Free briderait les protocoles SSH, VoIP ou P2P en zone non dgroupe. Retrieved at, http://www.numerama.com/magazine/15461-free-briderait-les-protocoles-ssh-voip-ou-p2p-en-zone-non-degroupee.html.; and consumer complaints at http://pastebin.com/MZ3WF8sz. 42 See Brohult, L. (2011). Operatrer frbjuder Viber och Skype. Mobile.se. Retrieved at, http://www.mobil.se/nyheter/operatorer-forbjuder-viber-och-skype-1.385105.html. 43 See this statement from the Vodafone Italy website: La promozione Mobile Internet Plus ti consente di navigare in internet sul cellulare e utilizzare applicazioni VOIP al costo di 8 euro a settimana con traffico fino a 2GB. See also iSpazio. (2011). Vodafone blocca Viber, Tango, Skype e tutte le applicazioni che permettono di effettuare chiamate VoIP su rete 3G da iPhone. Retrieved at, http://www.ispazio.net/166560/vodafone-blocca-viber-tango-skype-e-tutte-le-applicazioni-chepermettono-di-effettuare-chiamate-voip-su-rete-3g-da-iphone.; accompanied by various user complaints on Vodafone Italys forum, at http://lab.vodafone.it/forum/viewtopic.php?f=17&t=17985. 44 See TeleGeography. (2012, June 27). TeliaSonera Finalising Mobile VoIP Charging Model in August. Retrieved at, http://www.telegeography.com/products/commsupdate/articles/2012/06/27/teliasonera-finalising-mobile-voip-chargingmodel-in-august/. 45 See VON Europe. (2012, February 23). Identified Restrictions on Internet Access by Mobile Operators. Available at, http://www.scribd.com/doc/98641591/VON-Europe-Non-exhaustive-Indentification-of-Restrictions-on-Internet-Access-byMobile-Operators.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Second, an ISP can use its bottleneck power towards VoIP or other services, content, and applications to place them at a competitive disadvantage or harm them in different ways. This could result in undesirable outcomes, such as price or quality discrimination (i.e. intentional degradation of the QoS to encourage consumers to only use the operators own services). An illustration of such harmful conduct would consist in an operator reserving part of the Internet bandwidth for their own VoIP, in order to secure a competitive advantage over their perceived rivals, or through requiring VoIP providers to purchase a specific quality of service (QoS) level, or by requiring users to pay a surcharge for the right to use VoIP (this for example arose in the Shaw Cable dispute with Vonage in Canada, where Shaw allegedly charged CAUs an extra QoS fee to use non-Shaw VoIP services).46 Third, there is discrimination motivated from some ISPs focus, as evidenced in press statements, towards specific companies as those that make all the money from their investments in the network infrastructure. Such statements obviously forget that the infrastructure is only a means to access services, content, and applications, but not a means to an end. This results in a situation where ISPs can extort excessive rents out of their controlling position over a bottleneck. Fourth, it is also important to realise that part of the discussion behind the net neutrality debate is not only one driven by economic and financial considerations, but also by the issue of control combined with the fear of some ISPs to see infrastructure treated as a commodity by content, application and services providers and users. When taking these two factors into consideration, one can see that the potential and the incentives for abuse by ISPs are not necessarily covered by a traditional SMP analysis under telecoms rules, or as the OECD stated in its 2007 Report: Anti-competitive behaviour can appear in all types of markets, even those judged to be competitive (...) Therefore, regulators cannot simply count the number of data providers in a given region and assume that the market is sufficiently competitive. Regulators may need to undertake a careful market analysis to determine whether households have effective choices for substitutable broadband Internet access. Which Internet access technologies constitute substitutable broadband will be a key issue in determining market competition.47
46
See CBC News. (2006). Shaw, Vonage engage in war of words over internet phone service. Retrieved at, http://www.cbc.ca/news/business/story/2006/03/08/shaw-060308.html. 47 See OECD. (2007). Internet Traffic Prioritisation: An Overview (DSTI/ICCP/TISP(2006)4/FINAL). p. 28. Retrieved at, http://www.oecd.org/internet/interneteconomy/38405781.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet In light of this variety of incentives to misbehave in a net neutrality context, VON believes safeguards must hence be put in place by the European Commission and BEREC. 1.2. Traffic management and privacy issues Question 9: It appears that the implementation of traffic management measures requires ISPs to analyse certain information about individual data packets, for instance by deep packet inspection (DPI) techniques. Please explain which type of information needs to be read by ISPs to implement the different traffic management measures. In which layer can this information normally be found? As VON is not an ISP, nor are its members, we will not respond to this question directly. However, we refer you to our answer to question 10 which sets out why deep packet inspection (DPI) should not be allowed for traffic management purposes, and to our other answers in this document that explain why discrimination on the Internet should not be tolerated by policy makers and regulators. The European Data Protection Supervisor (EDPS) identified, in its Opinion on net neutrality, traffic management and the protection of privacy and personal data, the following inspection techniques:48 Based on the IP header information Based on deeper inspection, namely either deep packet inspection based on the analysis of protocols and on statistical records or deep packet inspection based on the analysis of the content of the communication. The EDPS concludes that, whilst there are different levels of intrusiveness amongst these techniques, they all have serious implications in terms of privacy and data protection.
48
See EDPS. (2011). Opinion of the European Data Protection Supervisor on net neutrality, traffic management and the protection of privacy and personal data. p. 8, 9. Retrieved at, http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-1007_Net_neutrality_EN.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 10: (a) Are there any privacy risks arising from the use of DPI for traffic management purposes, and, if so, what are the implications for transparency and consumer protection? (b) Are there alternative techniques for traffic management that do not involve deep packet inspection? Please provide examples and explain your response. Please compare those alternative techniques with deep packet inspection, in particular in terms of their effectiveness, potential impact on privacy and costs for operators. (a) The European Data Protection Supervisor (EDPS) analysed in its Opinion on net neutrality, traffic management and the protection of privacy and personal data49 what privacy risks are associated to the use of deep packet inspection (DPI) and more generally of any forms of inspection techniques that impede on privacy, notably by breaching the confidentiality of communications. The EDPS reached the following conclusions in its Opinion:50 When ISPs process traffic data with the sole purpose of routing the information flow from the sender to the receiver, they generally carry out limited personal data processing11. In the same way as the postal service processes the information included on the envelope of a letter, the ISP processes the information needed to route the communication towards the recipient. This does not conflict with the legal requirements of data protection, privacy and confidentiality of communications. However, when ISPs inspect communication data in order to differentiate each communication flow and to apply specific policies, which may be unfavourable to individuals, the implications are more significant. Depending on the circumstances of each case and on the type of analysis performed, the processing may be highly intrusive for an individual's privacy and personal data.. (b) Traffic management as handled by operators in the past and which was motivated solely by the concern to manage congestion in an efficient and non-discriminatory manner does not require DPI type techniques, as packets have been built in a manner that allows networks to spot the necessary information without needing to dig deeper. DPI only comes into play when discriminatory practices
49
See EDPS. (2011). Opinion of the European Data Protection Supervisor on net neutrality, traffic management and the protection of privacy and personal data. p. 8, 9. Retrieved at, http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-1007_Net_neutrality_EN.pdf. 50 See EDPS. (2011). Ibid. p. 4-5.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet that aim at differentiation not between e.g. a video stream and email but between which video streams are used. Question 11: (all respondents) Where the users consent is required for traffic management measures, particularly where such measures might entail access to and analysis of certain personal data by ISPs, please explain how (e.g. in which format) this consent should be sought by the ISP, what prior information needs to be provided by the ISP to the user, and how the user consent should be given, in order to optimise user awareness and user convenience. VON considers that where ISPs set in place measures that impede on their users privacy, it is very difficult to imagine how users can be made fully aware of the nature and impact of these measures. The public outcry in the Netherlands after KPN admitted using deep packet inspection in May 2011 is a good indication of the reaction generated by such measures, once they are publicly revealed and understood. VON therefore strongly believes that DPI should simply not be accepted as it creates too strong a risk of unfair and unreasonable breaches to the open Internet and a general risk in terms of privacy of EU citizens. It should truly not be forgotten that the option for users to vote with their feet are not that great in the EU, certainly not when considering the mobile market. Getting proper consent when not many alternative options are available and when it is not unlikely that all providers could use DPI techniques in the future if authorised to do so, seems impossible and hence pure rubber stamping. 2.1. Transparency and general characteristics of the Internet access offer Question 12: (all respondents) In order to allow consumers to make informed choices, on the basis of clear, meaningful, and comparable information, which elements should be communicated to consumers? Elements related to traffic management practices: (a) Contractual restrictions (blocking, throttling, other restrictions on application use)
X important less important

Please provide reasons for your answer: Obviously, users need to be made aware of contractual restrictions to avoid being in breach of contract. This is not even a principle that relates to open Internet discussions but stems from basic
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet consumer protection rules (see notably Directives 97/7/EC and 93/13/EC), reinforced by the relevant provisions in the Universal Service Directive (notably Articles 20 and 21). In general, we also refer you to VONs spreadsheet listing contractual and in some cases technical blockings by ISPs in the EU, as well as surcharges required to enable VoIP on mobile networks.51 Although non exhaustive, this document paints a rather grim picture in terms of VoIP availability in the EU on mobile networks. (b) Traffic management policy applied to prioritise certain traffic in specific circumstances

Please provide reasons for your answer: VON considers that users should be informed of all restrictions applied to traffic and that regulators should measure each restriction according to the principles of relevance, proportionality, efficiency, non-discrimination between parties and transparency. (c) Whether and to what extent managed services may affect the quality of the best effort Internet (e.g. the possibility of the Internet connection being affected when watching IP-TV or when using other managed services)
X important less important measuring technically feasible (fixed) measuring technically feasible (mobile) currently measured (fixed) currently measured (mobile)
Please provide reasons for your answer: VON considers that transparency towards consumers should not only cover the technical impact of traffic management practices implemented by the access provider. The information supplied should also disclose the impact on the user experience, as such disclosure is likely to be most meaningful to many users.
51
See VON Europe. (2012, February 23). Identified Restrictions on Internet Access by Mobile Operators. Available at, http://www.scribd.com/doc/98641591/VON-Europe-Non-exhaustive-Indentification-of-Restrictions-on-Internet-Access-byMobile-Operators.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet It is very difficult for users to realise where a low quality Internet experience comes from. Indeed, it could come from the hardware they use such as low computing power or faulty configuration of their Wi-Fi router or from an ISP having a poor quality network, from an ISPs traffic management practices, or indeed, from the poor quality of a piece of content, application or service. This difficulty was highlighted by the BEREC in its response to the European Commissions consultation on the open Internet and net neutrality in Europe from September 2010: Consumers may not be able to detect the actual application of discriminating traffic management techniques and find it difficult to distinguish between the effects of traffic management techniques on quality of service from the effects of other quality degrading factors. For instance, a consumer who is observing that traffic is routinely throttled may not know whether this is done by intention, or is caused by other factors such as network congestion, which is leading to the degradation of service.52 This presents an added complication when it comes to the discriminatory behaviour affecting a number of Internet uses, especially Voice over IP (VoIP), through blocking or degradation. Users may think that it is the VoIP software application they are using which is of poor quality, and with one or two clicks, swich to an alternative application or indeed, if they experience bad quality for all VoIP applications, not use VoIP anymore but only traditional, less versatile telephony. A study by Synovate in 2009, commissioned by Yahoo!, Google and Skype,53 confirmed this: when experiencing a bad Internet experience, a quarter of users surveyed in the UK, Germany, and France, attributed the problem automatically to the webpage or software they were using. This confirms the need for very clear, meaningful information by the ISPs to end-consumers in the form of a short factsheet as well as with some more detail, for use by anyone including endconsumers who so wish and any other interested parties including content, application and service providers. Users should be able to know not just that certain traffic management practices are taking place, but: That they will only affect them for purely technical (congestion management), legal or security reasons; and,
52
See BEREC. (2010). BEREC Response to the European Commission's consultation on the open Internet and net neutrality in Europe (BoR (10) 42). Retrieved at, http://berec.europa.eu/doc/berec/bor_10_42.pdf. 53 See main findings here: Skype. (2009). New Study Suggests Consumers Want European Lawmakers to Preserve and Protect an Open Internet. Retrieved here, http://about.skype.com/2009/03/new_study_suggests_consumers_w.html.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet How they will affect their Internet experience in practice, for instance, that it will take them for a typical service or application X number of minutes to download a normal quality movie at given times of day, compared to non peak times; whether they will be able to make a good quality video-call at all times or whether the management of peer to peer or VoIP traffic in times of congestion will make it difficult for them to do so at certain times of the day; etc. Further studies on users understanding of traffic management information could help regularly improve the clarity and usefulness of the information provided. For VON, the European Commission and BEREC should ensure that end-users and consumers can continue to use the Internet applications, services and devices of their choice. The European Commission and BEREC should therefore resist any attempts, whether regulatory, commercial or competitive, to block or hinder unfettered access to VoIP (or similar technologies) and more generally to all legal Internet content, applications and services, including their underlying technology, and that prevents VoIP from being utilised to its full potential. (d) Other restrictions, please specify: VON has no comments. (e) Data allowances (caps), download limits

Please provide reasons for your answer: VON considers that users should be informed of all restrictions applied to traffic and that regulators should measure each restriction according to the principles of relevance, proportionality, efficiency, non-discrimination between parties and transparency. (f) What these data allowances enable customers to do in practice (download x hours of video; upload y photos etc.)

Please provide reasons for your answer: VON would like to refer to its answer in sub question (c) under the heading elements related to traffic management practices.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Elements related to speed and quality: (a) Average speed, typical speed ranges and speed at peak times (upload and download)
Please provide reasons for your answer: VON considers that users should be informed of all restrictions/parameters applied to traffic and that regulators should measure each restriction according to the principles of relevance, proportionality, efficiency, non-discrimination between parties and transparency. (b) Respect of guaranteed minimum speed (if applicable)
Please provide reasons for your answer: VON would like to refer to its answer in sub question (a) under the heading elements related to speed and quality.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (c) What these speeds allow customers to do in practice (video-streaming, audio-download, videoconferences etc.)
Please provide reasons for your answer: VON would like to refer to its answer in sub question (c) under the heading elements related to traffic management practices. (d) Latency/network responsiveness (a measure of traffic delay) and which services would be affected thereby (e.g. certain applications such as IP-TV or videoconferencing would be more seriously impacted by higher traffic delays in the network of the provider)
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (e) Jitter (a measure of the variability over time of latency) and which services would be affected thereby (e.g. echoing in VoIP calls)
Please provide reasons for your answer: VON would like to refer to its answer in sub question (c) under the heading elements related to traffic management practices. (f) Packet loss rate (share of packets lost in the network) and which services would be affected thereby (e.g. VoIP)
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (g) Reliability of the service (network accessibility and retainability), i.e. measure for successful start and completion of data sessions
Please provide reasons for your answer: VON would like to refer to its answer in sub question (a) under the heading elements related to speed and quality. (h) Quality parameters for (mobile) voice telephony (call setup success rate, dropped calls, speech quality, other)
Please provide reasons for your answer: VON would like to refer to its answer in sub question (a) under the heading elements related to speed and quality. (i) Other, please specify: VON considers that users should also be informed of the privacy impact of any measures applied to them by ISPs. Indeed, the European Data Protection Supervisor (EDPS) pointed out in its Opinion on net neutrality, traffic management and the protection of privacy and personal data that increasing use by ISPs of traffic management policies could possibly limit access to information. If this behaviour became common practice and it was not possible (or highly expensive) for users to have access to the full Internet as we know it, this would jeopardise access to information and user's ability to send and
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet receive the content they want using the applications or services of their choice.54 This finding led the EDPS to conclude that a legally mandatory principle on net neutrality may avoid this problem.55 Question 13: (all respondents) Some ISPs currently apply 'fair use policies', which give them wide discretion to apply restrictions on traffic generated by users whose usage they consider excessive. Do you consider that, in case of contractual restrictions of data consumption, quantified data allowances (e.g. monthly caps of x MB or GB) are more transparent for consumers than discretionary fair use clauses?
X yes no
Please provide reasons for your answer. VON believes that the concept of fair use is both difficult to understand for users and gives too much margin for abuse to access operators. In his testimony before the US Senate in February 2006, Professor Lawrence Lessig differentiated between ISP pricing strategies that auction off lanes of broadband service by tiering access between content sources and users and ISPs who offer end-users different throughput speeds or permissible volume of traffic.56 On the one hand, access-tiering violated Professor Lessigs sense of network neutrality, because it would weaken competition for Internet services and the potential for continuing growth by erecting additional financial barriers to entry by innovators unable to pay the surcharges demanded by major network operators. On the other hand, Professor Lessig considered consumer-tiering a permissible strategy by network operators to recoup infrastructure investments and to create necessary incentives for more investment even though it probably would result in changing the consumer value proposition by helping network operators extract higher revenues particularly from large volume, power users. In so far as the question expresses the same principles as Professor Lessig VON agrees.
54
See EDPS. (2011). Opinion of the European Data Protection Supervisor on net neutrality, traffic management and the protection of privacy and personal data. p. 4. Retrieved at, http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-1007_Net_neutrality_EN.pdf. 55 See EDPS. (2011). Ibid. p. 4. 56 See Lessig, L. (2006) .Prepared Testimony before the Senate Committee on Commerce, Science and Transportation, Hearing on Network Neutrality. Retrieved at, http://commerce.senate.gov/pdf/lessig-020706.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 14: (all respondents) (a) When should the elements of information referred to in question 12 be provided to the consumer by the ISP?
before signing the contract regularly updated during the contract period during the contract period if changes occur X other, please specify:
(b) Which format (e.g. contract, general terms and conditions, separate and specific information, other (please specify)) do you consider appropriate to communicate this information to consumers? (a) VON considers that users need to be made aware of contractual restrictions at all the suggested points in time mentioned in question 14 to avoid being in breach of contract. As stated previously, this is not even a principle that relates to open Internet discussions but stems from basic consumer protection rules (see notably Directives 97/7/EC and 93/13/EC), reinforced by the relevant provisions in the Universal Service Directive (notably Articles 20 and 21). (b) Traffic management covers some quite technical realities that can be difficult or simply scary for mainstream end-users to understand. On the other hand, over-simplifying the information could be misleading, as the devil often lies in the details. VON believes ISPs should be required to provide all end-users (i.e. both content, application and service providers which include businesses and public administrations, and consumers) with clear, precise and relevant information on the content, applications and services that can be accessed and distributed through their ISP, the traffic management practices employed on the networks and any quality of service (QoS) limitations. Disclosure of such information is critical if regulators, content, application and service providers, and end-users and consumers are to have sufficient information available to determine if anticompetitive or harmful discrimination by ISPs is occurring. It seems therefore appropriate that the information given regarding traffic management be accessible in at least two formats: 1. a set of clear, key facts (like an executive summary) that any consumer could understand; and, 2. supplemented by very detailed, technical information. Obviously, if a minimum set of standards were set to guarantee access by end-users to the best efforts, global public Internet, whatever other managed services they may be buying from an
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet operator, transparency requirements would be less necessary for the Internet access portion of the offering by the provider. Information given regarding traffic management should moreover comply with a certain number of conditions, namely: traffic management policies should be easily accessible by the public in various formats (e.g. posted on the ISPs website, available in paper format, etc.); these policies should be communicated to end-users prior to their subscription, any changes being then notified immediately, with the possibility for the end-user to then switch at no cost if such changes violate principle 1 above i.e. they have the right to send and receive the content of their choice, and access and use the content, applications, and services of their choosing, and to connect hardware and use software of their choice that do not harm the network; and, a comparable format should be adopted by all ISPs, preferably set jointly by all relevant stakeholders, to allow end-users to make an informed and user-friendly comparison between the available offerings. Question 15: What would be the (additional) costs for ISPs to (i) collect the various data mentioned in the table in question 12 (e.g. measuring of average speed, jitter, delay etc.) and (ii) communicate the information to their customers. Please provide an estimate of the above costs for your own company or an ISP of your choice explaining your assumptions and methodology, and details about the technical tools used to collect the various data. If possible, please provide a breakdown of the costs. VON has no comments.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 16: (all respondents) (a) In order to promote transparency and consumer choice, do you consider it necessary that comparable data on the Internet access provided by ISPs is collected and published by NRAs or another independent organisation?
X yes no
Please explain your response. VON considers that it is crucial to gather data not only to help consumers get a better picture when choosing their access operator or to assist regulators in their monitoring, but also in order to help content, applications and services providers in adapting their content to the available infrastructure by minimising the impact on bandwidth, something they have been investing in for years. Moreover, data gathering is also important for research purposes by universities or specialised entities such as Measurement Lab (M-Lab),57 or to be used by consumer organisation and/or comparison websites. Do you think this information should be broken down by geographic areas or different data plans? VON believes that the information should be broken down in a sufficiently granular manner to be meaningful whilst allowing comparisons not only between operators but also between offerings in different Member States. (b) What are the advantages and corresponding costs of this data collection and publication being undertaken by NRAs or by another type of organisation (please specify which one). Please provide an estimate at EU-level or for an EU Member State of your choice. VON considers that the advantages are enormous and more importantly, not doing such data collection is truly not an option. From a practical point of view, we believe that the following elements are critical in determining and monitoring quality of service (QoS) requirements and other contractual terms from both a quantitative and qualitative point of view:
The support of a body of technical experts, put in place through a multi-stakeholder approach
that includes relevant industry segments (including CAPs), consumer organizations and civil society representatives;
57
See Measurement Lab (M-Lab), http://www.measurementlab.net/.
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Regular testing of Internet speeds and quality of service for each access provider (fixed or
mobile), both in terms of the speeds available for Internet access and for the various managed services, if any are available, and for each main application type such as streaming, VoIP, peerto-peer (P2P), websites, etc. For managed services, SLAs offered could also prove a useful source of information; and,
The requirement for ISPs to report on a regular basis to NRAs about the quality of services
effectively achieved in the different layers of their network, both in the last mile and at handover points. Regular measurements by NRAs or another habilitated body will be required to verify if the announced performances by ISPs are met in practice. Most regulators could easily do this as part of their recurring reviews of broadband speeds. We believe that the European Commission and BEREC have all the pieces of the puzzle in their hands and just needs to put them together and give end-users in Europe the Internet they deserve. Question 17: (all respondents) (a) Do you consider it necessary to regulate the labelling as "Internet access" of subscriptions that restrict access to some Internet services, content or applications?
X yes no
Please reason your answer. Traffic management and other restrictive practices should be able to be assessed in light of the BERECs statement that: lack of transparency (the end-user transparency problem) may mean that consumers do not find it easy to make informed decisions and compare services. This may be because the information does not exist or is deceptive. It might also be because the information consumers are presented with is complex, not easy to interpret and/or set out in a number of different places, which makes it difficult to interpret and/or compare. Transparency problems can be generated and amplified by a variety of factors, including the increasing number and diversity of offers, the complexity of tariff plans, the bundling of services and the deficient presentation of information by service providers.58 An important element in this context is to properly define what Internet access is.
58
See BEREC. (2010). BEREC Report on Best Practices to Facilitate Consumer Switching (BoR (10) 34 Rev 1). p. 74. Retrieved at http://berec.europa.eu/doc/berec/bor_10_34_rev1.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet The recent Plum Consulting report on the open Internet a platform for growth59 suggests that the term Internet access be defined consistent with open internet norms and that use of the term in marketing be allowed only for those network access providers who abide by the stipulated set of open internet principles (rather than consumers having to assess potentially complex and opaque information regarding network management and blocking). This is in line with the earlier recommendation formulated by the French regulator ARCEP in its 2010 public Consultation document on discussion points and initial policy directions on Internet and network neutrality, which states that:60 In the case of offers of partial access to the services available on the Internet, due to the blocking (outside the scope of regulatory obligations) of certain services, websites or protocols, which is generally the case on mobile networks today, operators cannot qualify these offers as Internet access so as not to mislead end users. Only an offer that has all the characteristics of Internet access () may employ this; and, the term unlimited cannot be used to describe service offerings that include fair use type limitations that restrict consumption over time. In light of this the ARCEP pointed out that: () even in data offers that are not qualified as Internet access, it does not seem legitimate to block voice over IP (VoIP) services (such as Skype) since that they not consume more bandwidth than other services that are currently accessible via mobile networks.61 We would therefore recommend that: (i) The term Internet (or Internet access) be clearly defined,62 and that offers which do not entail access to the open Internet may not be marketed as Internet; and, (ii) Make clear that blocking or otherwise hindering VoIP is not a legitimate practice.
59
See Williamson, B., Black, D., & Punton, T. (2011). The Open Internet A Platform for Growth. A Report for the BBC, Blinkbox, Channel 4, Skype and Yahoo!. p. 37. Retrieved at, http://www.plumconsulting.co.uk/pdfs/Plum_Oct11_The_open_internet_-_a_platform_for_growth.pdf. 60 See ARCEP. (2010). Discussion Points and Initial Policy Directions on Internet and Network Neutrality. p. 33. Retrieved at, http://www.arcep.fr/uploads/tx_gspublication/consult-net-neutralite-200510-ENG.pdf. 61 See ARCEP. (2010). Ibid. p. 33 62 For instance as a service enabling users to access and distribute any content or service, and run any application of their choice on the Internet, on the device of their choice (See Ofcom. (2011, November 24). Ofcoms Approach to Net Neutrality. Section 1.3. Retrieved at, http://stakeholders.ofcom.org.uk/consultations/net-neutrality/statement/.)
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (b) If yes, which restrictions would be acceptable before a subscription could no longer be marketed, without qualification, as an Internet access product? None, except for bandwidth/capacity related tiered offerings but that do not differentiate between the content, applications or services being accessed. (c) What would be the consequences (including the cost) for ISPs if they were not allowed to market as Internet access an offer with certain restrictions, or if such marketing was subject to mandatory qualification? Please provide quantification for your own company or an ISP of your choice explaining your assumptions and methodology. VON does not consider that the impact of such measures on ISPs should matter in this context, as the obligations to ensure transparency for users are clearly enshrined both in the sector-specific Telecoms Package (notably Article 20 and 21 of the Universal Service Directive) and in the generic consumer protection provisions in both EU and national legislation. We furthermore note that in some countries, offers are already being marketed as something else than the Internet, for example by Mobile Network Operators (MNOs) that refer to 3G packages or similar obscure terminology (e.g. web) for your average user. This marketing bypass just shows how weak a mere do not call it a spade obligation would be. 2.2 Switching: Question 18: (all respondents) (a) Please explain what barriers to switching ISPs still exist (if any) and how they can be overcome. Please mention in your reply all direct and indirect factors dissuading consumers from switching (e.g. obstacles linked to the terminal equipment, burden of proof regarding a possible breach of contract, etc.) van Schewick gives, in her recent paper on network neutrality and quality of service, a very accurate description of consumer behaviour displayed in an imperfect but closer to reality market: Participants in the network neutrality debate often assume that the viability of disclosure rules as a substitute for substantive regulation solely depends on the amount of competition in the market for Internet access services. After all, if there is no competition, there will be no other providers that consumers can switch to in response to discriminatory conduct, making it impossible for them to discipline providers. Based on this reasoning, participants in the debate often assume that mandatory disclosure alone
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet will be sufficient to discipline wireline providers in Europe or in countries like Canada, where the market for wireline Internet access is generally more competitive than in the US. Similar arguments are made for mobile Internet access, where users often have a choice between three or more competitors. These arguments fail to recognize that the market for Internet services is characterized by a number of factors incomplete customer information, product differentiation in the market for Internet access and for wireline and wireless bundles, and switching costs that limit the effectiveness of competition and reduce consumers willingness to switch. Rules that require network providers to disclose whether and how they interfere with applications and content on their networks reduce the problem of incomplete customer information, though only to some extent. They do not remove any of the other problems. As a result, they still leave network providers with a substantial degree of market power over their customers that enables them to restrict some applications and content on their network without losing too many Internet service customers. Disclosure rules also do not affect the cognitive biases, cognitive limitations and externality problems that lead users to underestimate the benefits of switching providers compared to what would be in the public interest. Thus, even if there is competition in the market for Internet access services, disclosure cannot replace substantive regulation as a tool to discipline providers.63 If one adds to the analysis the additional element pointed out in the BERECs draft Report on differentiation practices then relying on consumers sophistication/rationality and competition alone as a deterrent seems clearly insufficient:64 Even if there is effective competition, another possible exception could occur where endusers were rational but short-sighted and opted for prioritised services without taking into account that by doing so they and the other Internet users would be harmed (because their combined choices would deter innovation and, hence, lower the availability and quality of future services). It may be the case that ECPs also failed to take account of this dynamic effect. Therefore, they could suffer i.e. in terms of reduced
63 64
See van Schewick, B. (2012), Ibid. p. iv. See BEREC. (2012). Draft Report on Differentiation Practices and Related Competition Issues in the Scope of Net Neutrality. p. 44 (Paragraph 208). Retrieved at http://berec.europa.eu/files/news/bor_12_31_comp_issues.pdf
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet profits if innovation on the Internet declined and reduced the value end-users can obtain from Internet connectivity. (b) How should an ISP inform consumers of changes to their packages? By all means available: email, postal mail, SMS, etc. (c) What actions by an ISP would constitute a breach of contract or modifications to the contractual conditions which would enable a consumer to be released from a contract? VON believes this matter is already extensively covered by existing consumer protection and contract-related legislation. (d) Should customers be able to easily opt out from certain contractual restrictions (up to a completely unrestricted offer) by the same operator?
X yes no
Please explain your response. VON does not believe contractual restrictions on Internet access are appropriate and hence thinks that users should always be able to opt-out of them. This opt-out should however not lead to vote with your feet becoming synonymous with vote with your wallet. As pointed out in the context of switching in the BERECs draft Guidelines for quality of service: the price difference between the restricted and unrestricted offers must also be assessed as an element of the switching cost.65 From VONs perspective, the fact that some ISPs ask users for the payment for a surcharge to use voice over IP (VoIP) applications on mobile phones is a clear abusive practice, notably when considering that: (1) the content, applications and service providers and users have both paid for their use of the network, as pointed out in the BERECs draft Report on IPinterconnection66 and (2) many of the VoIP apps are actually available for free or at a minimal charge.
65
See BEREC. (2012). Draft BEREC Guidelines for Quality of Service in the Scope of Net Neutrality (BoR(12) 32). p. 53. Retrieved at, http://berec.europa.eu/files/news/bor_12_32_guidelines.pdf. 66 See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet If yes, how could this be facilitated? Clear guidelines should be issued mandating ISPs to abide by certain principles allowing access by users to unrestricted offers at a fair price and easy switching, with the possibility of a regulatory intervention in case ISPs do not comply. (e) Do you think that a customer should be allowed to switch to another operator within a reduced contract termination period in case his/her current operator does not at all offer an unrestricted Internet access product or does not allow switching to such unrestricted offer?
X yes no
Please provide reasons for your response. VON believes that Belgium has set the right example by including in its Telecoms Law adopted in 2012, a provision which provides for maximum contract terms, meaning providers will no longer be able to charge cancellation fees for customers switching contracts after six months. For subsidised handsets and tablets not a common practice in Belgium the law provides a depreciation table of up to two years. Subscribers also have the right to switch when conditions are changed to their disadvantage. This law was implemented by Belgacom from the 1st of July 2012, both for its fixed and mobile services. It should be noted however that Belgium is not the most competitive market in terms of choice of access providers and the vote with your feet approach is not one that gives users a long way to walk nor many doors to bang on for alternatives. VON would like to draw to the European Commissions attention a best practice introduced by the Belgian legislator in 2010, when it adopted a law amending the 2005 Electronic Communications Act to tackle this hurdle of losing ones email address when switching between ISPs.67 This law gave Internet access providers four months to agree on a Code of Practice that would solve this issue when switching, by requiring that emails arriving at the customers old email address to still be accessible to them, either by preserving access to their old mailbox or by an automated forwarding mechanism, and this for a duration of 6 months after the cancellation of the subscription.
67
FOD Economie, KMO, Middenstand en Energie. (2010, 6 April). Wet tot wijziging van de wet van 13 juni 2005 betreffende de elektronische communicatie wat betreft de verandering van operator. Retrieved at, http://www.ejustice.just.fgov.be/mopdf/2010/06/16_1.pdf. pp. 37498-37499.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet The Belgian regulator BIPT remarked that a similar system to number portability would not be feasible for email addresses, given that the addresses ISPs hand out to their subscribers contain in general their trade or brand name.68 As a result, in March 2011 the BIPT and the Internet Service Providers Association of Belgium (ISPA) agreed on a code of conduct69 proposed by the industry in accordance with the law which stipulates that subscribers maintain free access to their email address with their prior ISP until six months after contract termination. This access will either be provided through webmail or POP, depending on the choice of the ISP. Question 19: (all respondents) While there may be valid (technical) reasons why consumers do not always get the advertised service speed or quality, should there be a limit on the discrepancy between advertised and actual service parameters (e.g. speed)?
X yes no
Please explain your response. If you consider that there should be a limit on the discrepancy, how should this limit be defined? It seems quite obvious that the discrepancies between advertised and actual service parameters should be as small as possible, as any other practice would fall under false or misleading advertising prohibitions put in place by consumer protection laws. Moreover, tools are available to measure the quality of broadband received in real-time: in some cases they can consist in apps or add-ons provided by access operators themselves and in other cases, they can be downloaded or obtained from third party sites. VON considers that such real-time tools should be automatically provided to users in order for them to be able to evaluate in real time the quality of the offering they receive, and that a generic tool that is provided by a third party such as M-Lab and allows users to deal with the same interface regardless of the provider they use might be more user-friendly. This would also make it possible to warn users of certain traffic management measures when they kick into force at congestion times, in real time, and hence not only create more transparency but also raise the level of awareness of users.
68
BIPT. (2011). Decision of the BIPT Council of 1 March 2011 on the assessment of the ISPA Code of Conduct on the email and webspace access in accordance with Articles 121/1 and 121/2 of the Act of 13 June 2005 on electronic communications. Retrieved at, http://www.bipt.be/ShowDoc.aspx?objectID=3448&lang=en. p. 3. 69 See Annex I in BIPT. (2011). Ibid.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 20: (all respondents) Pursuant to Article 30 (6) of the Universal Service Directive conditions and procedures for contract termination shall not act as a disincentive against changing service providers. How could changing of operators be facilitated? Please provide examples and explain your response. Please refer to our answer to question 18 (e). Question 21: (all respondents) How could the transparency of bundles (packages including telephony, Internet, TV) be improved for consumers and how could switching be facilitated in the presence of bundles? A number of triple play offerings relying on bandwidth-reservation are being offered across the EU. While we see no problem with the development of triple play services and enhanced quality of service offerings, it is important to note that: Triple or multiple play offerings often translate into a reduction in the switching ability of consumers. Although this is not a problem per se, it means that relying on consumers switching providers thanks to transparent information, in order to protect the open character of the Internet, cannot be sufficient. The development of so-called specialised or managed services, should not be allowed to endanger the delivery of the open Internet, either technically or financially. By that we mean that open access to the Internet should not become over-priced or a slow, dirt road to Internet content, compared to managed services. Safeguards must be put in place to avoid a dirt road effect whether because network improvements favour managed services only, or because Internet access becomes overpriced compared to managed services. This point is also being raised in a recent Report from the French Parliament, which states that the quality of the public Internet could quickly degrade because of the important growth in data streams, if Internet access providers were not to invest in their networks or were to give priority to the commercialisation of managed services.70
70
See Erhel, C., & De La Raudire, L. (2011). Rapport dinformation sur la neutralit de linternet et des rsaux. p. 10. Retrieved at, http://www.assemblee-nationale.fr/13/pdf/rap-info/i3336.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 22: (all respondents) (a) How important would be the benefits for end-users of improved transparency and facilitated switching?
very important X important slightly important not important

Please explain your response. VON considers that competition, transparency and ease of switching are just parts of the equation, seeing that even those markets which European regulators deem to be competitive (e.g. the mobile retail markets) do not in fact exhibit the market dynamics leading to unrestricted access to the Internet. Transparent information tells consumers about the terms and conditions of their package, but does not offer them real choice nor unrestricted Internet access if operators mimic each others behaviour as experience in Europe demonstrates. Moreover, even if operators do not mimic each others behaviour but users are faced with a choice where there are only 3 operators on the market and operator 1 offers products A and B, operator 2 offers products A and C and operator C offers products B and C, that choice does not reflect the demand of the user that would like to benefit from A, B and C. The BEREC also pointed out the limitations of transparency in its Response to the European Commissions 2010 consultation on the open Internet and net neutrality in Europe stating that: transparency, information and customer awareness are necessary conditions, since they allow customers to make informed choices, but they are not by themselves sufficient. The end-user access market must be competitive enough to enable the end-user to switch to another provider in the first instance. Second, switching must be reasonably easy. Thirdly, there has to be at least one other provider offering acceptable quality for best effort Internet access. If all of those conditions are brought together, then transparency can allow competition to become effective in practice.71 Therefore, in VONs view, the BEREC correctly concludes that there are some limitations on the effectiveness of transparency as a measure remedying network neutrality issues,72 a point acknowledged in the European Commissions April 2011 Communication on net neutrality.73
71
See BEREC. (2010). BEREC Response to the European Commission's Consultation on the Open Internet and Net Neutrality in Europe (BoR (10) 42). p. 10-11. Retrieved at, http://berec.europa.eu/doc/berec/bor_10_42.pdf. 72 See BEREC. (2010). Ibid. p. 10-11. 73 See European Commission. (2011). Communication form the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: The Open Internet and Net Neutrality in Europe
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet (b) What would be the expected benefits in terms of innovation by new businesses (content or applications) as a consequence of improved consumer choice and increased competition between ISPs? VON sees a symbiosis between the end-users (including both consumers and the Internet content, application and service providers, as defined under Article 2 of the Framework Directive) and the companies that control the access network infrastructure and provide transmission services at the access network level. Thanks to the continued innovation in Internet content, applications and services which net neutrality enables and supports consumer demand for broadband Internet access continues, therefore providing network operators with return on network investment. VON would however like to point out that in some Member States, either nationally or locally, the issue is not necessarily improving consumer choice or increasing competition but merely creating consumer choice and putting in place competition as regards Internet access options. VON would also like to point out that oligopolies are not considered traditionally as creating competitive environments. The BERECs draft Report on differentiation practices makes the crucial statement that:74 On a long term perspective, the intensity of innovation could well depend on the permanence of the open platform aspects. Dividing the Internet into several separate networks, increasing entry costs, differentiating quality depending on applications, introducing innovation control or sending any signal that makes these perspectives credible may make innovation harder and result in a lower growth of new applications. Faced with such an analysis, the European Commission and BEREC should act urgently to set in place the required safeguards to avoid such a dire outcome.
(COM(2011) 222 final). p. 9. Retrieved at, http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0222:FIN:EN:PDF. 74 See BEREC. (2012). Draft Report on Differentiation Practices and Related Competition Issues in the Scope of Net Neutrality. p. 30 (Paragraph 129). Retrieved at http://berec.europa.eu/files/news/bor_12_31_comp_issues.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet Question 23: Would the facilitation of switching for consumers trigger any (administrative) costs for ISPs?
yes no
If so, please quantify them. VON does not see the relevance of this question. We note that acquiring a customer also induces a cost as do most things in life. 3. IP interconnection issues Question 24: (a) In your view, are there any problems regarding IP interconnection arrangements (between network operators, ISPs, transit providers and/or content providers) that could have an impact on the quality of the best effort Internet?
yes X no
Please explain your response. The OECD and BEREC pointed out in a joint 2011 Report on peering75 that the peering market is efficient and competitive. Moreover, in the explanatory note to the European Commissions Relevant Markets Recommendation, the European Commission reached the following conclusions in the area of peering:76 There are a number of differences between the typical arrangements for terminating calls on the public telephone network and delivering packets to destination addresses on the public Internet. In the latter case, end-users are implicitly paying to both send and receive packets. It is not automatically or typically the case that incoming traffic is
75
See OECD. (2011). Internet Traffic Exchange: Market Developments and Policy Challenges (OECD DSTI/ICCP/CISP(2011)2). Retrieved at, http://www.oecd.org; and Weller, W. (2011, November 2). IP Traffic Exchange Market Developments and Policy Challenges. BEREC Expert Workshop on IP-Interconnection in Cooperation with OECD, Brussels, November 2, 2011. Retrieved at, http://berec.europa.eu/. 76 See European Commission. (2007). Commission Staff Working Document Explanatory Note Accompanying document to the Commission Recommendation on Relevant Product and Service Markets (SEC(2007) 1483 final). p. 37. http://ec.europa.eu/information_society/policy/ecomm/doc/library/proposals/sec2007_1483_final.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet charged for and that this charge is passed to the traffic sender via the senders network. As indicated above, traffic connectivity can be arranged in a number of ways. Entry barriers to this market are low and although there is evidence of economies of scale and that the ability to strike mutual traffic exchange (peering) agreements is helped by scale, this alone cannot be construed as inhibiting competition. Therefore [] there is no a priori presumption that ex ante market analysis is required. Therefore, no market for wholesale Internet connectivity (or delivery of incoming packets) is identified for the purposes of the Recommendation. Finally, as pointed out in the BERECs draft Report on IP-interconnection,77 the European Commission has clearly stated in the framework of a notification by the Polish NRA UKE78 that the IP peering and transit markets did not require ex ante regulation as they are competitive. The European Commission also pointed out that there was no reason to create two distinct markets that would differentiate between free peering on the one hand and paid-for IP transit on the other. (b) Are there any specific issues related to the vertical integration of ISPs and transit providers?
X yes no
Please explain your response. The discriminatory practices put in place by some operators can have a rippling effect across the network, and are likely to be especially present in case of vertical integration. VON would notably like to draw to the European Commissions attention some of the collateral damage that can derive from blocking and filtering practices by one operator to networks in neighbouring countries. Indeed, on July 13, 2012, Ars Technica reported that researchers at the Citizen Lab at the Munk School of Global Affairs at the University of Toronto, revealed that some Oman Internet users using the Omantel ISP are also being subjected to Indian content restrictions
77
See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). p. 44 (footnote 128). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf. 78 See European Commission. (2010, March 3). Commission Decision of 3 March 2010 pursuant to Article 7(4) of Directive 2002/21/EC (Withdrawal of notified draft measures) Case PL/2009/1019 : The wholesale national market for IP traffic exchange (IP transit) Case PL/2009/1020: The wholesale market for IP traffic exchange (IP peering) with the network of Telekomunikacja Polska S.A. Retrieved at, http://circa.europa.eu/Public/irc/infso/ecctf/library?l=/poland/registered_notifications/pl200910191020/act_part1_v4pdf/_EN_1.0_&a=d.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet because of traffic flowing through India.79 This adds a whole new dimension to the possible impacts of unreasonable traffic management on society as a whole and content, application and service providers as well as users specifically. In another scenario of vertical integration, access network providers could be expanding their activities vertically in order to offer Content Delivery Network (CDN) capabilities. In such cases, which are acceptable in principle, it is crucial that the two businesses are managed separately, in other words that the CDN delivery remains neutral, in order to avoid those controlling end-user access creating a situation of bottleneck also at the CDN level. Question 25: Direct peering, Content Delivery Networks (CDN) or Quality of Service Interconnection (between ISPs and content providers) are being developed to propose an enhanced quality of service for content providers and end users. (a) What role can they play in reducing the risk of network congestion? Content Delivery Networks (CDNs) provide a way for content, application and service providers to optimise the delivery of the traffic generated by their users. This can take the form, for example, of the most popular content being cached closer to the end-user so that it can be accessed more speedily, thus helping assuage the effect of traffic increase. In other words, the function of a CDN is to enhance users overall Internet experience by hosting and serving content from a location more proximate to end-users, thus avoiding points of possible congestion and reducing latency. By definition, they do not and cannot involve or interfere with other traffic flows to end-users. Only lastmile broadband access providers like incumbents have such control. (b) What opportunities and threats do they constitute for: (i) (ii) (iii) (iv) ISPs, content providers, transit providers and end users?
As recognized by the BERECs draft Report on IP-interconnection,80 many content, applications and services providers have invested heavily in a network of data centres and high capacity backbone
79
See Farivar, C. (2012, July 13). Internet Content Blocking Travels Downstream, Affects Unwary Users. Ars Technica. Retrieved at, http://arstechnica.com/tech-policy/2012/07/internet-content-blocking-travels-downstream-affects-unwaryusers/. 80 See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). p. 48. Retrieved at,
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet infrastructure to connect to the national internet exchanges and other traffic aggregation points around the world. In other words, content, applications and services providers are investing in infrastructure, notably through Content Delivery Networks (CDNs), which constitute a great opportunity for the entire Internet ecosystem, including end-users. Indeed, CDNs lead to an improvement of the quality of Internet for all end-users and VON does not see which threats could be seriously linked to them. VON is aware that some access providers assert that CDNs are non-neutral but we consider these allegations to be incorrect. The function of a CDN is to enhance users overall Internet experience by hosting and serving content from a location more proximate to end-users, thus avoiding points of possible congestion and reducing latency. By definition, they do not and cannot involve or interfere with other traffic flows to end-users. Furthermore, unlike the routers in the last-mile broadband access network, where prioritizing is usually zero-sum (so that speeding some packets inherently means slowing others), there is no limit to the number of users that can enjoy the enhanced quality and speed that flow from CDNs and other content serving facilities. Indeed, content, applications and services providers ranging from start-ups and small businesses to large established players take advantage of these types of facilities, either directly or indirectly by purchasing services from specialist providers.81 In other words, content, applications and service providers make their investment in data centre infrastructure available to third parties (see Amazon, Google, Microsoft, etc.): anyone, including telecom operators, is welcome to take advantage of this to develop their own services for users. As regards the Internet ecosystem, routers and servers are two entirely different things, and routing someone elses packets is not the same as storing your own data. Content aggregation and delivery facilities used by applications and content providers do not and cannot control the flow of Internet traffic to end-users. This is why bottleneck access providers are properly at the heart of the net neutrality debate. Bottleneck access providers connections are still the only gateway users have to access everything else online; as a result of this unique place in the network, these providers can manipulate and interfere with users Internet experience, including by determining whether users have access to certain content and applications at all.
http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf. 81 See e.g. Mangalindan, M. (2008, January 15). Small Firms Tap Amazon's Juice. Retrieved at, http://online.wsj.com/article/SB120035205794189723.html (discussing small businesses and start-ups using Amazons distributed content storage services to build their business).
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet VON also notes that in some debates, access providers also mistakenly (or deliberately) conflate caching ones content with last-mile prioritization of all Internet traffic. Yet, as discussed above, CDNs allow content, applications and service providers to have their applications and content provided from a location that is more proximate to the end-user. However, neither CDNs, nor content, applications and service providers themselves, have the ability to interfere with the routing of other entities traffic they have no ability to make some packets go faster (which necessarily slows other packets) at the last-mile router, the critical area of control. In terms of ability to control end-user Internet traffic, there are sharp distinctions between last-mile broadband provider access and router control over all traffic on the one hand, and servers, CDNs, and aggregation facilities limited to ones own data on the other. (c) Are there any barriers of a regulatory, technical or business nature that prevent market players other than ISPs from playing a more important role in reducing the risk of network congestion?
yes no
Please explain and describe possible solutions to such issues. VON has no comments. 4. Process Question 26: (all respondents) (a) Do you consider that intervention by public authorities is necessary at this stage?
X yes no
If so, what would be the appropriate level of such intervention? VON considers guidelines should be issued at EU level and that, in addressing the issue of an open Internet and net neutrality, the European Commission and BEREC should strike a careful balance between: the need of ISPs to manage their networks; the ability of service and application providers to develop and innovate, including the proverbial 2 guys in a garage; the position of content providers, regardless of whether they are a citizen, an administration, or a media conglomerate; and,
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet the role of NRAs to address the risk inherent in an ISPs ability to discriminate in the treatment of traffic based upon the ISPs control over a bottleneck and its resulting economic or other fundamental interests. VON urges the European Commission and BEREC to take a path that balances these competing interests in a way that serves the interests of end-users, consumers, ISPs, and content, applications and service providers including the media and cultural industries and Government at all levels, by taking the following steps: First, explicitly confirm the widely-accepted principles that end-users and consumers have the right to send and receive the content of their choice, and access and use the content, applications, and services of their choosing, and to connect hardware and use software of their choice that do not harm the network. Second, encourage NRAs to adopt a transparency standard requiring ISPs to provide all endusers (i.e. individual users including consumers, but also content, applications and service providers including the media and cultural industries and Government at all levels) with clear, precise, and relevant information on the services and applications that can be accessed through their ISP, the traffic management practices employed on the networks, and any quality of service limitations. Third, set a behavioural standard intended to prohibit ISP discrimination that is anticompetitive, creates barriers to innovation, or harms end-users and consumers, and it should bar ISP conduct that violates the other core, open Internet principles of user choice (see our first bullet point). ISPs may face some technical challenges to manage network congestion and support various online applications. VON agrees that any regulation should not limit efforts by ISPs to fairly use network management to overcome technical challenges and maintain a high quality Internet service for their customers. However, this freedom to manage the network should not be a license for ISPs to behave in anti-competitive and other harmful ways, such as blocking legitimate content and applications or unreasonably degrading services that users have paid to access. Neither should ISPs unreasonably discriminate against any content or services on the Internet. VON believes that the European Commission should state explicitly that discriminating against VoIP services and applications is not seen by the European Commission as legitimate given that these services and applications do not consume substantial network resources and function today on fixed and mobile broadband access
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet networks around the world (in the areas where they are technically and contractually unrestricted). Fourth, ensure that Member states adopt an enforcement mechanism that would handle complaints from all end-users (i.e. individual users including consumers, but also content, application and providers including the media and cultural industries and Government at all levels) on a timely case-by-case basis to determine whether an ISP has violated the principles adopted by the regulator, including whether an ISPs discrimination is anticompetitive, creates barriers to innovation, or harms end-users. Some observers state that even without specific regulation, ISPs would be unlikely to block applications or virtually foreclose content from their platforms as indirect network effects ensure that the platforms value to end-users increases along with the applications and content available on it. VON Europe believes that this is only one side of the story, and far from the reality. Recent developments confirm the need for a pro-active and forward-looking approach, as harm is evidenced widely in the EU. Indeed, in reality we see some worrying practices. Many mobile network operators, including all GSM/UMTS operators in several EU Member States, have decided to adopt technical and/or contractual conditions preventing users from using VoIP and P2P applications, and certain other forms of utilisation are otherwise impeded or subject to unjustified additional retail tariffs. Mobile operators in some Member States are continuing the discriminatory pattern initiated notably when the iPhone was launched, with its big brother the iPad, namely to prohibit end-users from using VoIP, P2P, and other applications. In other words, ISPs do have incentives to discriminate between players operating at the application and content layers of the OSI model, i.e. application and content providers, in particular when ISPs are vertically integrated into the application and/or content layers and if ISPs face limited competition at the infrastructure layer. In these obvious cases, ISPs can act as monopolists by shaping traffic in a way that departs from the application providers, content and service providers, or users interests. But ISPs also have an incentive to engage in anti-competitive and other harmful behaviour even if they have not been declared as having significant market power at the infrastructure layer, and even if they are not vertically integrated. Broadband providers control over the physical last-mile infrastructure necessary to access the Internet allows them to effectively determine whether end-users reach the Internet at all. The
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet problem is therefore centred on the Internet access bottleneck, and is particularly relevant in mobile markets, where only a limited number of providers exist. VON believes that it is important to understand that the net neutrality issue is first and foremost an issue of bottlenecks, rather than one relating to the degree of competition in the retail and/or wholesale Internet access market(s). The reported cases and public statements in the US and Europe i.e. the Madison River and Comcast cases in the US; Shaw Cable VoIP QoS fee dispute with Vonage in Canada; blocking or surcharging of VoIP and P2P notably by European MNOs in their terms and conditions; removal by some UK mobile operators of VoIP functionality from Nokia N95 handsets in 2007; statements by various telecoms CEOs in the press etc. show that the threat is not hypothetical. In terms of the impact on innovation, the question should be asked which innovative content, application or service provider would be able to raise funds from investors for a new idea if there is no guarantee that this idea will ever be available to all end-users wishing to access it? Internet innovation was built around the principle that you could innovate without having to ask permission and this principle which has underpinned twenty years of global, wide-ranging productivity, growth gains and social progress would disappear in a context where broadband Internet access providers would be allowed to turn into gatekeepers. The traditional ex post competition approach is ill-suited to redress the widespread harm to innovation, citizens and consumers already witnessed around the EU: access operators without significant market power are as likely as those with significant market power (SMP) to engage in harmful discrimination; mobile retail markets are excluded from market reviews in Member States and hence escape close scrutiny by NRAs; and competition cases are long affairs, often taking up to 10 years, which are also very costly and therefore simply impossible to carry out for most European innovative companies (more than 95% of EU ICT firms are SMEs). It is also important to note that self-regulation efforts, as illustrated in Norway over the past years, do not seem sufficient to guarantee an open Internet. The following quote from a letter of the European consumer organisation BEUC to European Commission Vice-President Neelie Kroes underscores this. The recent developments in Norway, where the biggest telecom operator has announced its intention to charge for content providers for prioritized transmission with the aim of promoting its content and that of its partners, raises serious concerns from
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet the consumers point of view. At the same time, Norways second largest mobile services provider is publishing schemes to disallow VOIP on their networks. Developments towards that direction are extremely worrying, when considering that Norway has been among the first countries to adopt guidelines on net neutrality. However, this soft approach has proven to be ineffective in protecting consumers from discriminatory practices.82 VON would hence finally like to urge the European Commission to quickly create clarity in the area of net neutrality by ensuring, in collaboration with BEREC, that guidelines are issued, and is supported in this view by another recent open letter by BEUC addressed to European Commission VicePresident Neelie Kroes83, in which they state: We thus call on you to undertake a new legislative measure which should include at least the following elements:
A definition of the net neutrality principle. A definition of legitimate and illegitimate traffic management. A general prohibition of non-discrimination between Internet traffic streams
unless done on legitimate traffic management grounds, and in particular a prohibition to violate the end-to-end principle.
A clear set of obligations on ISPs regarding the neutrality and QoS of the Internet
access services on the one hand, and on specialized services on the other. (b) What would be the consequences of divergent interventions by public authorities in the EU Member States? VON expects that under such a scenario, a splinternet will occur, as described by journalist and author Doc Searls, namely a growing distance between the ideals of the Internet and the realities of dysfunctional nationalisms.84 The innovation created by the online ecosystem builds to a large extent on the global nature of the Internet. Lets imagine a start-up launching an innovative online service or application from the far end of Africa or simply in a small town as Ardche or Corsica. Due to diverging interventions by public
82
See BEUC. (2011). Net Neutrality in Europe needs to be safeguarded. Letter sent to Ms Neelie Kroes, Vice-President of the European Commission. p. 2. Retrieved at, http://www.beuc.org/custom/2011-00115-01-E.pdf. 83 See BEUC. (2012, July 16). Protecting Net Neutrality in Europe. Letter Sent to the Vice-President of the European Commission Ms. Kroes. Retrieved at, http://www.beuc.org/custom/2012-00482-01-E.pdf. 84 See Searls, D. (2008, December 16). The Splinternet. Retrieved at, http://blogs.law.harvard.edu/doc/2008/12/16/thesplinternet/.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet authorities, the start-up is made aware that whilst its service or application will be available in the Netherlands and other countries were an open Internet is preserved, this is not the case everywhere. What should this company then do? Negotiate with every ISP of the non-net neutral countries to benefit from a special deal and hence hire lawyers across the globe assisted by engineers that will need to scrutinize commercial agreements in 27 Member States and a plethora of languages? Will they have to auto-limit their offering to only the few countries (if any) they have the resources to negotiate with and deprive the rest of the world of their innovation? Question 27: (a) Have you made use of the dispute resolution powers under the Framework Directive in relation to a dispute about traffic management practices?
yes X no
As VON is a trade association, this question does not apply to us. (b) Have you also made use of these dispute resolution powers also in relation to disputes between an ISP and a content provider?
yes X no
As VON is a trade association, this question does not apply to us. (c) If you have made use, please explain under which circumstances. If you have not made use, please explain whether you consider that these dispute resolution powers would be an appropriate tool for such Internet traffic management disputes? VON, as a trade association, does not get involved in disputes itself. However, we strongly believe that it is important for NRAs to put in place appropriate complaints procedures for both users and content, applications and service providers that would feel wronged, triggering own-initiative investigations by the regulator, and own-initiative enforcement by the regulator, e.g. on the basis of the new Quality of Service provisions of the 2009 Telecoms Package. Decisions should be reached within a reasonable timeframe for example 90 days from when a complaint is filed and without unnecessary burden on the parties, including end-users and consumers. Reasonably speedy evidence gathering and decision-making will provide clarity to industry at the same time that it protects end-users and consumers from ongoing abuses. Lengthy
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet delays, in contrast, could prove harmful to the development of the Internet ecosystem by delaying the development and market entry of nascent services and thus depriving end-users and consumers of innovative new services and applications. The experience of the Canadian Radio-television and Telecommunications Commission (CRTC) may be instructive. In its October 2009 framework for evaluating the lawfulness of network management practices, the CRTC established a process whereby a party that believes that a network management practice is unlawful may file a complaint establishing that a [network management practice] discriminates or results in a preference or disadvantage and describing the rationale and evidence for concluding that the preference or disadvantage is unlawful.85 The burden then shifts to the Access Provider to establish that any such discrimination, preference or disadvantage meets the requirement of the framework.86 CRTC also provided a mechanism by which Access Providers could obtain prior approval for a given practice, and it reserved the right to initiate an enforcement investigation on its own motion. VON encourages the European Commission and the BEREC to study the CRTC approach. Question 28: Do you consider that regulators should monitor interconnection agreements between providers?
yes X no
Please explain your view. The resources of regulators are already strained and VON considers that many of them as well as the BEREC have put a lot of resources (both in terms of time and effort) in analysing the IP-interconnect mechanisms and that, with the findings of the BERECs draft Report on IP-interconnection87 that no market failure is present, these resources should now be re-allocated to put an end to the many
85
CRTC. (2009). Telecom Regulatory Policy CRTC 2009-657. Review of the Internet Traffic Management Practices of Internet Service Providers. Retrieved at, http://www.crtc.gc.ca/eng/archive/2009/2009-657.htm, and CRTC. (2010). Telecom Decision CRTC 2010-445. Modifications to Forbearance Framework for Mobile Wireless Data Services. Retrieved at, http://www.crtc.gc.ca/eng/archive/2010/2010-445.htm. Telecom Regulatory Policy CRTC 2009-657, Review of the Internet traffic management practices of Internet service providers, October 21, 2009, http://www.crtc.gc.ca/eng/archive/2009/2009-657.htm and http://www.crtc.gc.ca/eng/archive/2010/2010-445.htm 86 Ibid. 87 See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). p. 48. Retrieved at, http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf.
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet discriminatory behaviours identified in the findings from the BERECs and the European Commissions joint investigation on traffic management.88 The OECD and BEREC pointed out in a joint 2011 Report on peering89 that the peering market is efficient and competitive. Moreover, in the explanatory note to the European Commissions Relevant Markets Recommendation, the European Commission reached the following conclusions in the area of peering: There are a number of differences between the typical arrangements for terminating calls on the public telephone network and delivering packets to destination addresses on the public Internet. In the latter case, end-users are implicitly paying to both send and receive packets. It is not automatically or typically the case that incoming traffic is charged for and that this charge is passed to the traffic sender via the senders network. As indicated above, traffic connectivity can be arranged in a number of ways. Entry barriers to this market are low and although there is evidence of economies of scale and that the ability to strike mutual traffic exchange (peering) agreements is helped by scale, this alone cannot be construed as inhibiting competition. Therefore () there is no a priori presumption that ex ante market analysis is required. Therefore, no market for wholesale Internet connectivity (or delivery of incoming packets) is identified for the purposes of the Recommendation.90 Finally, as pointed out in the BERECs draft Report on IP-interconnection,91 the European Commission has clearly stated in the framework of a notification by the Polish NRA UKE92 that the IP peering and
88
See BEREC. (2012). A View of Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe. Findings from BERECs and the European Commissions Joint Investigation (BoR (12) 30). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/BoR12_30_tm-snapshot.pdf. 89 See: OCDE. (2011). Internet Traffic Exchange: Market Developments and Policy Challenges (OECD DSTI/ICCP/CISP(2011)2). www.oecd.org; et: Dennis Weller. (2011, 2 Novembre). IP Traffic Exchange Market Developments and Policy Challenges. Sminaire BEREC/OECD, Bruxelles, 2 Novembre 2011, http://erg.ec.europa.eu/doc/berec/oecd/weller.pdf. 90 See European Commission. (2007). Commission Staff Working Document Explanatory Note Accompanying document to the Commission Recommendation on Relevant Product and Service Markets (SEC(2007) 1483 final). p. 37. http://ec.europa.eu/information_society/policy/ecomm/doc/library/proposals/sec2007_1483_final.pdf. 91 See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). p. 44 (footnote 128). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf. 92 See European Commission. (2010, March 3). Commission Decision of 3 March 2010 pursuant to Article 7(4) of Directive 2002/21/EC (Withdrawal of notified draft measures) Case PL/2009/1019 : The wholesale national market for IP traffic exchange (IP transit) Case PL/2009/1020: The wholesale market for IP traffic exchange (IP peering) with the network of Telekomunikacja Polska S.A. Retrieved at,
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet transit markets did not require ex ante regulation as they are competitive. The European Commission also pointed out that there was no reason to create two distinct markets that would differentiate between free peering on the one hand and paid-for IP transit on the other. VON therefore encourages regulators and BEREC to focus its attention on the identified issues in the context on net neutrality, namely discriminatory practices that have commercial motivations and/or harmful consequences. Question 29: (all respondents) Under article 22(3) USD NRAs have the power to set minimum quality of service requirements on undertakings providing public communications networks. In a scenario where in a given Member State no unrestricted offer is available (for instance because all operators actually block VoIP), do you consider that the minimum quality of service tool should be applied by the NRA to require operators to provide certain unrestricted offers?
X yes no
Please explain your response. Traffic management for commercial motivations based on the exploitation of a bottleneck or discrimination between content, applications and services of similar nature does not create consumer value, as it decreases choice and switches the control from the end-user to the access operator acting as gatekeeper. More generally, VON considers that harmful and unjustified traffic management practices breach the end-to-end connectivity principle of the Telecoms Package enshrined in Article 5 of the Access Directive (2009/140/EC),93 the principles set out in Recital 28 of the revised Universal Service Directive (USD) (2009/136/EC).94
http://circa.europa.eu/Public/irc/infso/ecctf/library?l=/poland/registered_notifications/pl200910191020/act_part1_v4pdf/_EN_1.0_&a=d. 93 It must be noted however that Article 5 applies to access and interconnection issues, which would not cover many issues faced by content, service or applications providers faced with abusive behaviour by an ISP or mobile operator. 94 End-users should be able to decide what content they want to send and receive, and which services, applications, hardware and software they want to use for such purposes, without prejudice to the need to preserve the integrity and security of networks and services. A competitive market will provide users with a wide choice of content, applications and services. National regulatory authorities should promote users ability to access and distribute information and to run applications and services of their choice, as provided for in Article 8 of Directive 2002/21/EC (Framework Directive). Given the increasing importance of electronic communications for consumers and businesses, users should in any case be fully informed of any limiting conditions imposed on the use of electronic communications services by the service and/or network provider. Such information should, at the option of the provider, specify the type of content, application or service concerned, individual applications or services, or both. Depending on the technology used and the type of limitation, such limitations may require user consent under Directive 2002/58/EC (Directive on privacy and electronic communications).
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Comments on the European Commissions Public Consultation on specific aspects of transparency, traffic management and switching in an Open Internet VON hence believes that policymakers and regulators should guarantee that end-users have access to and can use the Internet content, applications and services, as well as the devices of their choice, including by ensuring unrestricted offers are available. Consequently, all attempts, whether regulatory, commercial (be it by prohibiting it or unduly asking for additional subscription fees) or technical, to block or hinder unfettered access to VoIP (or similar technologies), and in general all legal Internet content, applications, and services, including their underlying technologies, should be prevented, notably through the use the powers put in place by Article 22(3) USD. *** We thank you in advance for taking consideration of these views. Feel free to contact Herman Rucic, VON Europe, by phone (+32 (0)478 966701) or email (hrucic@voneurope.eu) should you need further information. * * * About the VON Coalition Europe The Voice on the Net (VON) Coalition Europe was launched in December 2007 by leading Internet communications and technology companies, on the cutting edge to create an authoritative voice for the Internet-enabled communications industry. Its current members are iBasis, Google, Microsoft, Skype, Viber, Vonage, Voxbone and WeePee. The VON Coalition Europe notably focuses on educating and informing policymakers in the European Union and abroad in order to promote responsible government policies that enable innovation and the many benefits that Internet voice innovations can deliver.
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VON Europe - Comments To European Commission's Public Consultation On Specific Aspects of Transparency, Traffic Management and Switching in An Open Internet

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