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Ofcom Finalises Softer UK Rules to Protect the Open Internet UPDATE

Thursday, Oct 26th, 2023 (10:53 am) - Score 4,368
internet_traffic_uk_illustration

Ofcom has finalised their move to soften the Net Neutrality rules, which were originally established to prevent unfair blocking or slowing of access to legal websites and internet services by broadband ISPs and mobile operators. Providers will now gain more flexibility to create “premium” packages (e.g. better latency) and “specialised services“.

Back in 2011/12 the United Kingdom became one of the first countries in Europe to adopt a self-regulatory approach toward protecting access to the open internet (here). The same rules later went on to help provide some of the foundation for the EU’s related law in 2016 (here), which post-Brexit has also been adopted, with minor alterations, to became part of UK domestic law.

The rules mean that providers cannot easily impose excessive restrictions against internet traffic and should treat almost all of it equally (i.e. they should avoid favouring specific services, such as by blocking or slowing access to rivals). However, there are some exceptions to this, such as when providers need to impose general traffic management, court ordered blocks or for security measures (e.g. anti-virus/spam filtering) etc.

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The measures also prevent ISPs from favouring content sources based on who pays them the most money, which might in turn lead to a degraded experience for other users (e.g. slowing the quality of Netflix or YouTube). This typically helps to ensure that excessive access controls over content don’t result in a walled garden style internet experience.

The Problem Areas

The UK communications regulator, Ofcom, has thus far tended to take a soft approach toward implementation and enforcement of these rules (i.e. it may be better to think of them as guidelines), which has at times made it difficult to know whether a particular product or service would be considered in breach or not.

For example, the Zero Rating (i.e. free mobile data) of some online services and websites during the COVID-19 pandemic (e.g. those providing support and health info.), which was a largely positive move, did in some cases appear to challenge the rules.

The use of Network Slicing on 5G networks (example), which enables mobile operators to create multiple virtual networks for specific services and often with different characteristics (e.g. a guaranteed level of latency for online gamers) – all on top of a single physical network – is another area that could test the rules.

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In response, Ofcom launched a review with the goal of updating the guidance to help clarify their approach to both monitoring and ensuring compliance with the existing Net Neutrality rules. Crucially, the regulator is not making any change to the core rules themselves, as that would be a matter for UK Government and, ultimately, Parliament.

Summary of the Key UK Net Neutrality Changes

In general, net neutrality has worked well and supported consumer choice as well as enabling content providers to deliver their content and services to consumers. However, there are specific areas where we provide more clarity in our guidance to enable ISPs to innovate and manage their networks more efficiently, to improve consumer outcomes:

• ISPs can offer premium quality retail offers: Allowing ISPs to provide premium quality retail packages means they can better meet some consumers’ needs. For example, people who use high quality virtual reality applications may want to buy a premium quality service, while users who mainly stream and browse the internet can buy a cheaper package. Our updated guidance clarifies that ISPs can offer premium packages, for example offering low latency, as long as they are sufficiently clear to customers about what they can expect from the services they buy.

• ISPs can develop new ‘specialised services’: New 5G and full fibre networks offer the opportunity for ISPs to innovate and develop their services. Our updated guidance clarifies when they can provide ‘specialised services’ to deliver specific content and applications that need to be optimised, which might include real time communications, virtual reality and driverless vehicles.

• ISPs can use traffic management measures to manage their networks: Traffic management can be used by ISPs on their networks, so that a good quality of service is maintained for consumers. Our updated guidance clarifies when and how ISPs can use traffic management, including the different approaches they can take and how they can distinguish between different categories of traffic based on their technical requirements.

• Most zero-rating offers will be allowed: Zero-rating is where the data used by certain websites or apps is not counted towards a customer’s overall data allowance. Our updated guidance clarifies that we will generally allow these offers, while setting out the limited circumstances where we might have concerns.

We also clarify that we are unlikely to have concerns where ISPs take reasonable approaches to provide services with clear public benefit. This includes enabling ISPs to prioritise and zero-rate access to emergency services, offer parental controls, manage internet traffic on transport and in public spaces where there is limited capacity available, and prevent access to scam websites and other harmful content.

The most important thing to say is that Ofcom has NOT found “sufficient evidence” to support calls by major broadband ISPs and mobile operators, such as BT and Vodafone (examples here and here), which have long sought to be able to charge content providers (Netflix, websites etc.) for carrying traffic. “Ultimately whether or not a charging regime should be introduced in the UK is a decision for Government and Parliament,” added Ofcom.

We think it’s always worth remembering that demand for broadband and mobile data services would not exist without attractive internet content (e.g. YouTube, Netflix, Facebook and other services etc.). Some ISPs may complain that the increase in related data usage from these services and others raises their costs, but that is a cost of doing business and should ideally continue to be reflected in the prices we all pay as end-users.

However, the regulator has said that ISPs should be able to create “premium” packages (e.g. those offering better latency) and “specialised services” (e.g. those optimised to support virtual reality and driverless vehicles), which might potentially also allow major providers to create a two-speed internet via the backdoor by – over time – subtly degrading the performance of their regular packages. Ofcom does try to counter this by requiring providers to be sufficiently clear with customers about what they can expect from any “premium” services, but ISPs don’t have the best record in the area of transparency.

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Selina Chadha, Ofcom’s Director of Connectivity, said:

“The net neutrality rules are designed to constrain the activities of broadband and mobile providers, however, they could also be restricting their ability to develop new services and manage their networks efficiently.

We want to make sure they can also innovate, alongside those developing new content and services, and protect their networks when traffic levels might push networks to their limits. We believe consumers will benefit from all providers across the internet innovating and delivering services that better meet their needs.”

Suffice to say, there’s something to be said for ISPs that aim to give the same good quality connection to all customers, rather than only a select few who pay them the most money for specific performance improvements. On the other hand, domestic-grade business packages have long claimed to optimise traffic for popular business services, and consumers can already pick packages with different speeds at extra cost.

Finally, the regulator appears to have stopped short of allowing Traffic Management policies to become too aggressive when needing to tackle network congestion, although they have said that such a change may be allowed – with government approval – in the future. In the past, such policies were notorious for heavily restricting file sharing traffic and blocking online content platforms, which may make sense on certain networks (e.g. free public WiFi), but not on others (e.g. home broadband).

In our view, the previous rules, while imperfect, did generally work reasonably well to keep the balance fair and the internet, open, as it was always intended to be. Ofcom’s changes will no doubt result in some ISPs pushing the guidelines as far as they can go, and we’ll need to see what they come up with before really being able to judge, but there is a risk that these changes may allow too much flexibility and give rise to the law of unintended consequences. On the other hand, networks and services are rapidly evolving, and the rules did need some tweaking to account for that new flexibility.

UPDATE 27th October 2023

We’ve had a comment from Mobile UK.

Hamish MacLeod, Chief Executive of Mobile UK, said:

“Mobile UK welcomes Ofcom’s updated guidance on Net Neutrality. The revised guidance gives extra clarity, which should assist in the design of new services and tariffs.

However, as Ofcom acknowledged during its consultation, they are constrained by the law and this was as far as they could go within existing rules. We now ask the Government to remove the regulations which are hindering investment and innovation, and replace them with a principles-based code which protects basic freedoms but promotes innovation.”

Similarly, BT called Ofcom’s changes a “step” in the right direction, but naturally they want more.

Howard Watson, BT’s Chief Security and Networks Officer, said:

“These changes are welcome and important and will help us to manage our network in the short term. But they are the start of further reforms that are needed, so we can face into the future with confidence. Unless and until telecommunications companies have the necessary environment to negotiate on a level playing field with content providers, the challenges of meeting growing demand will remain reliant on telcos funding endless capacity upgrades.

The internet is hugely valuable, but the benefits and costs could be more evenly spread. We need to create a new model that supports the laudable public policy goals of increasing coverage and getting more people online, while also ensuring reliability, quality and investment efficiency.

Ofcom’s statement is clear that any further reform will need Government action. Supporting the future delivery of content over the internet is becoming vital public policy and new rules – still guided by the principles of an open internet, consumer choice, innovation and efficiency – could unleash a new wave of online innovation in the UK.”

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Mark-Jackson
By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on X (Twitter), Mastodon, Facebook and .
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Comments
19 Responses
  1. Avatar photo JmJohnson says:

    Sooo… configure extended monitoring so that when latency, jitter etc worsens prior to new premium packages are released we can show they’ve intentionally degraded the existing packages ?

    1. Avatar photo 10BaseT says:

      haha that was my first impression when I read that. So if for instance my latency to ISP gateway is 5ms ,it will turn to 25ms and if I want my 5ms back I will have to pay more. I love all of those bureaucrats, they create problems they can resolve later and announce success 😉 like in communism 😉

  2. Avatar photo Techbloke says:

    Good for ISPs, not so good for the consumer.

    While different charges for differing amounts of bandwidth on a fibre circuit is acceptable, you can bet some ISPs are indeed going to milk the consumer while also getting a nice addtional stream of income from various partners who also will no doubt charge the consumer for access to services.

  3. Avatar photo I love Starlink says:

    “Most zero-rating offers will be allowed”

    Voda/Voxi will be glad to hear about that – thats their USP!

    As for paying more for a better QoS – that’s a decent idea.

    1. Avatar photo Matt says:

      I mean… Plusnet did this over a decade ago. Their old usertools site appears to have gone (or you have to be a customer to access?) and their Gaming packages had line-speed QoS at all times, even on P2P apps, whereas others either had a lower priority applied or a max speed cap, depending on package you were on.

      It makes sense for an ISP to apply traffic management to their network, its just it has a bad rap because of how some implemented it (like when Virgin just capped you at X mbps after so much usage – before they dropped that).

      I personally like how they’d set their network up, leaving it was pretty interesting to see how much difference it made (e.g. P2P traffic affecting other things, whereas on PN it was pretty rare for it to affect anything)

    2. Avatar photo I love Starlink says:

      No usertools died many years ago – the chaps who wrote and contributed are still there, although now all working for BT apart from one who is a IT agent for Plusnet still

      And yes I should have recalled Plusnet Doing it. i was there for all those “phases”. Offering premium upload on ADSL was my personal favourite. Plusnet is now but a shell of what a great ISP it used to be.. Still unfortunately nothing stays the same. I recal; the day they killed off Metronet. Now there was a great ISP..

  4. Avatar photo Rik says:

    I think this is a bad day for consumers. Providers will soon start to find “innovative” ways to ramp up prices.

    1. Avatar photo William Gange says:

      They don’t need to find new ways, ofcom will provide the excuses for that.

  5. Avatar photo Backwards Broadband says:

    Wonder how this will effect mobile broadband. It’s already bad, particularly with MVNO’s.

  6. Avatar photo John Geddes says:

    Special Services includes ‘real time communications’. So this includes VOIP and Wifi calling. Every subscriber without a usable mobile signal is going to have to stump up for the premium once non-Special performance is degraded.

  7. Avatar photo Ben says:

    Poor telcos — selling 1.6Gb full fibre packages and then having to fun “endless capacity upgrades” to allow customers to use the package which they bought.

    1. Avatar photo XGS says:

      Per Mbps the pricing is way lower than in the past and usage does continue to, albeit slowly, increase year on year.

      The 1.6G isn’t that big of a deal. Most folks will use about the same amount they did before and the lack of upload increase means little scope for Team Torrent to consume more.

  8. Avatar photo John Nolan says:

    Sadly, everything that Ofcom proposes is with a Telco mindset. Cest la vie.

    1. Avatar photo XGS says:

      What would you have preferred to see instead, John? Total neutrality, dumb layer 3 pipe?

  9. Avatar photo DaveZ says:

    I never cease to be amazed at how pathetic OFCOM are. (Well, anything that starts with “OF…” now I think about it).

  10. Avatar photo Sam says:

    Ofcom and protecting the open internet what a joke

    All they stand for is banning speech. They raised an issue with Laurence Fox saying a certain word, yet no problems with the BBC saying the exact same thing

  11. Avatar photo Mark Smith says:

    Ofcom and DSIT are funded by the sale of spectrum to the telcos. Because of this they are essentially in the pocket of the telcos.

  12. Avatar photo tonyp says:

    Predictable statements from ISP’s and MO’s about ‘traffic management’ to avoid congestion etc. Plus the ‘need’ for primary legislation to get their way.

    I see the hospitality business prospering and ‘brown envelopes’ mysteriously appearing in desk drawers as a way of ‘improving’ the networks. But it is for the public’s good of course with premium streaming services taking precedence. And we must not forget the shareholder’s return on investment must we?

    Anyway, with ‘improved’ traffic management, it will be easier to implement ‘the Great British Firewall’! Cynic? Moi?

    1. Avatar photo XGS says:

      Won’t make any difference to implementing something like China’s Golden Shield and seems to expressly prevent premium and standard streaming services having read though some of it.

      See how it gets implemented and what happens after.

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