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Net Neutrality Regulation in the UK: More Transparency and Switching

Chris Marsden
법학연구소 (The Institute of Legal Studies Konkuk University)|2014.05|경제규제와 법|제7권 제1호|pp. 44-68

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transparencyswitchingspecialized servicestraffic managementOfcom
주제분류법학

초록

UK network neutrality policy is influenced both byits regulator, Ofcom, and its particular and uniquenetwork topology. In Section Ⅰ, I first explain thenetwork topology, universal service, then introducethe regulator and explain why it has not taken onany disputes over net neutrality despite substantialuser disquiet about throttling and blocking ofcontent. The UK broadband market has relativelylow competitive intensity with only one wholesalenetwork for the majority of the population, and hasexperienced slower rollout to lower speeds than theUnited States, Korea or Netherlands. As a result,governmentand regulator concern has been toencourageinvestmentin faster services by theformer monopoly British Telecom (BT). Direct stateaid for the former monopoly will amount to almost£1.5billion in 2013-2015. Problems of congestionhaveplagued the network since at least 2005,brought to the direct attention of Ofcom in personin 2006 by both ISP TalkTalk which admitted toconsumerangerat its throttling of peer to peercontent, and the state broadcaster British BroadcastingCorporation, whose peer to peer videostreaming was throttled by BT. The regulator and government response hasbeen to insist that self-regulation could producegreater transparency to end-users, and regulationshouldbe limited to the theoretical possibility toswitch should blocking and throttling occur. Ofcomhas so far responded with a combination of denialthat there was a problem until 2006, an acceptanceand willingness to deal with those problems thatwere shown to have emerged, regulation of customerswitching problems between ISPs since 2006, and alight touch attempt to persuade ISPs to offer greatertransparency to users. I examine these in turn inSection Ⅱ.1. In Section Ⅱ.2, I explain the slow progress towardsa Code of Practice for greater transparencyunder the auspices of the government-industrypartnership, Broadband Stakeholder Group (BSG). ISPs had been persuaded by Ofcom to sign a codeof conduct on advertising broadband speed andcongestion in 2008, though this was inadequateand then replaced by the BSG Code from 2011-13. Continued government and Ofcom light-touchreview of this self-regulation was critiqued byamongst others Sir Tim Berners Lee. More recent concerns over standards relate to Quality of Service(QoS) and specialized services, which may alsobe shared in Korea. I explain the implications ofdefinitionsforQoS and bandwidth caps in SectionsⅢ-Ⅳ. UK ‘transparency and switching’ policy has beenmaintained for almost a decade, supported by theEuropean Commission’s wait-and-see approachup until 2008, and then again in 2010-12. It is nowsupplanted by the European Commission newlyfound and Parliament’s traditional insistence thatnet neutrality regulation be implemented. TheConnected Continentproposal of 11 September20131) would impose strict regulatory requirementson the UK, and makes the July 2013 UK government‘consultation paper’ instantly obsolete. The UK canbe expected to fiercely resist the Commission’splans from within the Council of Ministers in 2014.

Abstract

UK network neutrality policy is influenced both byits regulator, Ofcom, and its particular and uniquenetwork topology. In Section Ⅰ, I first explain thenetwork topology, universal service, then introducethe regulator and explain why it has not taken onany disputes over net neutrality despite substantialuser disquiet about throttling and blocking ofcontent. The UK broadband market has relativelylow competitive intensity with only one wholesalenetwork for the majority of the population, and hasexperienced slower rollout to lower speeds than theUnited States, Korea or Netherlands. As a result,governmentand regulator concern has been toencourageinvestmentin faster services by theformer monopoly British Telecom (BT). Direct stateaid for the former monopoly will amount to almost£1.5billion in 2013-2015. Problems of congestionhaveplagued the network since at least 2005,brought to the direct attention of Ofcom in personin 2006 by both ISP TalkTalk which admitted toconsumerangerat its throttling of peer to peercontent, and the state broadcaster British BroadcastingCorporation, whose peer to peer videostreaming was throttled by BT. The regulator and government response hasbeen to insist that self-regulation could producegreater transparency to end-users, and regulationshouldbe limited to the theoretical possibility toswitch should blocking and throttling occur. Ofcomhas so far responded with a combination of denialthat there was a problem until 2006, an acceptanceand willingness to deal with those problems thatwere shown to have emerged, regulation of customerswitching problems between ISPs since 2006, and alight touch attempt to persuade ISPs to offer greatertransparency to users. I examine these in turn inSection Ⅱ.1. In Section Ⅱ.2, I explain the slow progress towardsa Code of Practice for greater transparencyunder the auspices of the government-industrypartnership, Broadband Stakeholder Group (BSG). ISPs had been persuaded by Ofcom to sign a codeof conduct on advertising broadband speed andcongestion in 2008, though this was inadequateand then replaced by the BSG Code from 2011-13. Continued government and Ofcom light-touchreview of this self-regulation was critiqued byamongst others Sir Tim Berners Lee. More recent concerns over standards relate to Quality of Service(QoS) and specialized services, which may alsobe shared in Korea. I explain the implications ofdefinitionsforQoS and bandwidth caps in SectionsⅢ-Ⅳ. UK ‘transparency and switching’ policy has beenmaintained for almost a decade, supported by theEuropean Commission’s wait-and-see approachup until 2008, and then again in 2010-12. It is nowsupplanted by the European Commission newlyfound and Parliament’s traditional insistence thatnet neutrality regulation be implemented. TheConnected Continentproposal of 11 September20131) would impose strict regulatory requirementson the UK, and makes the July 2013 UK government‘consultation paper’ instantly obsolete. The UK canbe expected to fiercely resist the Commission’splans from within the Council of Ministers in 2014.

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