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New 'net neutrality' rules permit quality of service agreements between ISPs and content providers

Out-Law News | 12 Sep 2013 | 2:24 pm | 2 min. read

Internet service providers (ISPs) and producers of content will be able to form agreements with one another over the quality of service to be delivered to consumers under proposed new EU laws.

The European Commission has outlined draft new 'net neutrality' rules (73-page / 345KB PDF) under a package of measures designed to reform the EU telecoms market. 

Under those rules, ISPs would be obliged to deliver "the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialised services". 

The rules provide freedom for ISPs to agree on the precise data volumes and speeds of service they will provide to consumers but they prohibit ISPs from "blocking, slowing down, degrading or discriminating against specific content, applications or services, or specific classes thereof" unless it is "necessary to apply reasonable traffic management measures". 

'Reasonable traffic management measures', such as the blocking or throttling of communications, can be implemented by ISPs as part of their efforts to combat serious crimes, such as the distribution of child pornography. The term also covers cases where ISPs are seeking to "preserve the integrity and security" of their network or services they deliver of the network, as well as to "prevent the transmission of unsolicited communications" where customers have consented to the ISPs taking such action. 

In addition, traffic management techniques can be deployed so as to "minimise the effects of temporary or exceptional network congestion provided that equivalent types of traffic are treated equally". 

ISPs' traffic management must be "transparent, non-discriminatory, proportionate and necessary" in each case, according to the draft plans. 

However, the Commission's proposals do allow consumers and ISPs or content providers to form agreements that will see specific content delivered "with an enhanced quality of service" via "specialised services". In order to facilitate this arrangement, ISPs and content providers can legitimately agree on the nature of the enhanced quality of service to be provided, subject to conditions. 

"In order to enable the provision of specialised services to end-users, providers of content, applications and services and providers of electronic communications to the public shall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity," according to the Commission's draft single EU telecoms market and 'connected continent' Regulation said. "The provision of specialised services shall not impair in a recurring or continuous manner the general quality of internet access services." 

Regulators would be responsible for monitoring compliance with the regime and will have powers to set minimum quality of service requirements that ISPs would have to adhere to "if this is necessary to prevent general impairment/degradation of the quality of service of internet access services". 

Under the plans, ISPs would be required to detail information including "the actually available data speed for download and upload at the main location of the end-user, including actual speed ranges, speed averages and peak-hour speed" in the contracts they present to consumers before an agreement is finalised with them.