Posted: 13th Oct, 2010 By: MarkJ

Communications and networking provider Entanet UK has criticised Ofcom for failing to protect
Net Neutrality (the principal of treating all internet traffic as equal) in its current consultation (
here). At the end of September the regulator hinted to a
Westminster eForum that they could see a "
real economic benefit" for a
two-sided market where broadband ISPs favour any video/content (e.g. YouTube versus BBC's iPlayer) that pays them the most money.
Ofcom is expected to reveal its final decisions very soon, possibly before the end of this month. However it is widely anticipated that they will stop short of protecting Net Neutrality and instead merely ask ISPs to include more
consumer transparency of
Traffic Management policies and or related
Fair Usage (FUP) terms.
Ofcom's Consultation said:
"The European Commissioner, Neelie Kroes, has recently stated that consumer transparency of traffic management is 'non-negotiable' (-2-) . We agree and consider that it is critical that consumers are appropriately informed of traffic prioritisation, degradation or blocking policies being applied by their ISP and that they are able to factor these in when making purchasing decisions."
Entanet’s Head of Service Operations, Neil Watson, said:
"We completely agree that providers should be open and honest about the traffic management policies they apply and agree with the fundamental principles of net neutrality and keeping the Internet equal to everyone.
However, we also understand first-hand the increasing pressure on ISPs to provide a high quality service for all users whilst the demand for and the subsequent cost of bandwidth continues to increase. It is inevitable that ISPs will need to put some sort of traffic management policy in place to ensure a high quality service for all customers."
Many UK ISPs already restrict broadband traffic to certain services (e.g.
P2P,
Video Streaming etc.), or more generally during peak usage periods, as a means of balancing network load to give everybody an acceptable service.
This is perfectly normal and Ofcom are right to be critical of ISPs that persistently fail to make their restrictions clear. It is important for the competitive market and consumers in general that internet providers tell their customers precisely what restrictions apply and not hide behind vague FUP's.
Entanet’s Head of Service Operations, Neil Watson, warned:
"Our real concern over Ofcom’s decision is that ISPs could favour specific content providers, with whom they have made lucrative deals, therefore negatively impacting the service for the competitors of those content providers and creating anti-competitive behaviour within the market. Such behaviour will inevitably compromise their customers’ user experience and choice. We believe Ofcom will need to monitor this situation very closely."
To put this into more practical language. Imagine how consumers would react if their use of
Skype,
YouTube,
Facebook,
Google or even
iTunes suddenly became impeded because the content they produce was being restricted by your ISP in favour of an alternative service or simply because the content creator refused to pay up.
Providers could easily risk suffocating emerging markets and alienating customers. It also sets a dangerous principal for the future by suggesting that, at the extreme, everybody with online content should be paying ISPs for the privilege to be seen. This also removes the age old "
mere conduits" legal defence that ISPs have become so fond of using and threatens free speech.
However Ofcom is expected to argue that, despite the already established desires of some big ISPs to consider this avenue (e.g. BT and TalkTalk -
HERE), the current market has yet to be impacted and therefore it can see no reason to intervene. In fairness they do have a point, regulators are predominantly a reactionary force. We have to wait for the damage to be done first.