As with many things in life, there’s a spectrum of what this means. At one end, there’s a threat to civil liberties, commercial strategies, intellectual property and safeguarding against illegal content. At the other end, there’s (for want of a better phrase) a type of technological anarchy whereby there are ideological demands that all packets of data should be equal regardless of the content, legality, source or otherwise.
ITSPA’s members all operate in the VoIP space to some degree, so the subject of throttling (sorry, I think the marketing term is “traffic shaping”), blocking etc is both emotive and important to their businesses; so I think it is worthwhile explaining what I think the average VoIP provider means by Net Neutrality.
The first qualifier is that we always talk about legal content. What is legal and not legal varies by jurisdiction and is defined by various legislatures around the world; we would not necessarily expect any definition of an open internet to include illegal content.
We would also say that prioritisation of some services is an important option for users of internet connections to consider. Whilst your average domestic customer may have no need for such things (or rather not know they may need such things), it is a very different story in businesses. For example, you may want your supplier to ensure that voice traffic and business critical systems (say databases held in the Cloud) are prioritised over an employee surfing Facebook during their break.
They may even want to buy a managed package from their data services supplier where such websites are blocked in working hours, or to throttle iPlayer during Andy Murray’s latest Quarter Final attempt at Wimbledon.
Both examples are perfectly legitimate reasons to engage in traffic shaping. But I would say that the blocking of VoIP on a mobile network is illegitimate as it stands today. Whilst both examples are selective blocking or throttling based on a service, there’s a fundamental difference between the two; the business example is at the request of the customer in the full and transparent knowledge of what is going on. The latter example is often underhand and plays on consumer’s naivety.
One major UK mobile operator’s terms and conditions prohibit the use of iMessage and WhatsApp, along with third party video streaming (so, iPlayer and YouTube) services. Furthermore, under those terms and conditions of business, this constitutes a material breach with a potential remedy of suspension of service, but leaving the customer liable for the rest of the monies due under the contract absent a service.
So, in other words, they can sell you an iPhone, suspend your service upon the first iMessage you send and expect 2 years’ worth of contract payments. I have no doubt that this would fall foul of any judge ruling whether it is a reasonable contract, but this has to be considered against the fact this mobile operator was advertising “internet access” and/or “data” in their glossy magazines.
I reckon the average consumer would consider Skype and YouTube to be part of the internet; a more advanced or knowledgeable consumer would back that up saying “well, it’s called the Internet Protocol for a reason”. And if presented with a package of 1GB of data, they should expect to send or receive 8.59×109 ones and zeroes (assuming they comprised a legal whole) regardless of what they constructed. Anything else would be tantamount to the Royal Mail charging or refusing to accept letters based on their content, which only has to be stated to be shown to be ridiculous.
But, it would seem, that some mobile operators want to block certain products and services that compete with their own (so VoIP applications for cheaper non-geographic or international calls for example) for purely commercial reasons and do their utmost to ensure that consumers aren’t aware of this. Hardly a resounding example of a market based on competition and innovation is it?
Whilst there’s a debate going on as to whether Ofcom or the European Commission have the power to intervene on preventing blocking (there’s work going on about net neutrality there generally, and I would say that the plain and natural meaning of the revised Universal Service Directive empowers Ofcom to prevent the hindrance of traffic already) the easiest and most uncontroversial remedy is to increase transparency.
Why can a Communications Provider hoodwink customers into thinking that they have open and free internet access at the point of sale? Yes, they have to publish traffic management policies on demand and various other remedies, but would consumers go to that level of due diligence when they think they are buying “internet access”? Communications Providers have a requirement to ensure that they are transparent and clear in their dealings with their customers and to not engage in mis-selling (that’s not just a statutory requirement applying to all businesses, but is also enshrined in all their licence conditions) and it seems to me that this is a huge problem largely ignored by the regulator.
The consequence is that consumers are paying more for services through a captive provider and providers of these services can only launch them in a section of the market that is so difficult to define to potential customers (for example one mobile operator only blocks VoIP on tariffs under £40 a month) few rational investors would be confident enough to launch them which is holding back UK plc.
So to conclude, the ideal is an open internet where there is no blocking of any form of legal traffic for self-interested commercial reasons alone but where there is, there should be complete transparency and clear sign-posting of this at the point of sale, front and centre and not buried in the small print in technical jargon.
All of this is why Philip Davies MP recently took Ed Richards, the Chief Executive of Ofcom, to task on the subject in the Department of Culture, Media and Sport Select Committee. If you have 5 minutes, do watch this video (on a device connected to the internet via an Internet Service Provider where streaming is permitted of course) from 11:28 onwards – or about 40 minutes in. This one single parliamentary intervention has thoroughly reinvigorated efforts in this area so watch this space for updates (or better yet, join ITSPA and be part of it) as the battles continue!
This post was written by Pete Farmer, writing in a personal capacity. Pete is the Commercial and Regulatory Manager for Gamma a wholesale supplier of telecoms services. Pete sits on the ITSPA Council and chairs their Regulatory Committee. His contact details can be found via his LinkedIn profile.