It might be easy to say in principle that Internet service providers must treat consumer Internet traffic equally. It is not easy to square that rule with the need to manage network traffic, on occasion, at times of peak load, to maintain network performance.
Though most network neutrality rules make allowances for network management, it is difficult to create specific rules that everyone agrees respect the “equal treatment” principles and yet allow for network management.
Proposed guidelines for enforcing network neutrality rules produced by the Body of European Regulators of Electronic Communications (BEREC) provide an example.
BEREC says that the task of safeguarding “equal and non-discriminatory treatment of traffic in the provision of internet access services” does “not necessarily imply that all end-users will experience the same network performance or quality of service (QoS).
The reason is simply that network operators sometimes have to management traffic across the whole network, or parts of the network, at times of high throughput, especially to protect the performance of some classes of apps that are highly susceptible to latency, jitter, packet loss, and bandwidth.
That has been a contentious network neutrality issue. On one hand, the point of such rules is to ensure that “providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.”
On the other hand, networks have to managed, because networks are not built to handle all of the expected traffic at the most busy hour, on the most busy day. Instead, networks are built to handle typical levels of traffic.
So BEREC reiterates that “providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.”
On the other hand, “reasonable traffic management measures applied by providers of internet access services should be transparent, non-discriminatory and proportionate, and should not be based on commercial considerations,” BEREC says.
In fact, BEREC even recognizes the issue of “peak hour of peak day” congestion. “Measures going beyond such reasonable traffic management measures might also be necessary to prevent impending network congestion, that is, situations where congestion is about to materialise, and to mitigate the effects of network congestion, where such congestion occurs only temporarily or in exceptional circumstances,” BEREC says.
“ISPs may prioritize network management traffic,” in other words, so long as it is not done for commercial reasons.
“In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic,” says BEREC. “Such measures shall not monitor the specific content and shall not be maintained for longer than necessary.”
The guidelines confirm that Internet service providers “shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary” (for traffic management purposes).
As most regulatory bodies have concluded, “reasonable traffic management measures” are allowable. In other words, most networks must be managed, since nobody builds a network to handle any conceivable amount of traffic, at any given point in time. Instead, networks are “dimensioned” to support typical loads, not the absolute peak of traffic at the busiest hour of the busiest day, as telecom engineers used to describe the principle.
Common understanding of the compatibility between “equal treatment” and “network management” always has been an elusive matter, where it comes to network neutrality.