Enforcement programme into Internet Service Providers traffic management practices

Ofcom has decided to close its formal enforcement programme into internet service providers’ (ISPs) traffic management practices. During the course of the programme, Ofcom reviewed various  traffic management measures applied by ISPs and took enforcement action where necessary. We will, however, continue to monitor compliance by providers with the Open Internet Access Regulation and investigate any concerns that arise as appropriate.

Ofcom has also today published a statement on its approach to assessing compliance with net neutrality rules. This statement contains frameworks for reviewing zero-rated offers and  traffic management measures  for compliance with the Open Internet Access Regulation. Ofcom encourages ISPs and content and application providers (CAPs) to use this information to assist them in proactively self-assessing their compliance with the net neutrality rules.

Ofcom's approach to assessing compliance with net neutrality rules (PDF, 363.1 KB)

We raised concerns about Telefonica (trading as O2) (“O2”)’s compliance with Article 3(3) of the EU Open Internet Access Regulation after they sent us information about their traffic management practices.

Article 3(3) of the EU Open Internet Access Regulation requires that internet service providers (ISPs) treat all internet traffic equally without discrimination, restriction or interference.

ISPs may, however, use certain reasonable measures to manage their internet traffic so their networks run efficiently. Any measures must be based on objective, technical requirements for the quality of service of specific categories of traffic. They must also be transparent, proportionate and non- discriminatory, and must not be used for longer than necessary.

After we discussed this with O2, they gave us signed assurances that by 30 April 2019, they will:

• stop compressing streamed video content across their network, which is known as ‘rate control’; and
• stop compressing any web content or images to manage traffic.

O2 has confirmed that it has already stopped using its Vasona platform to prioritise video and social media traffic when there is temporary congestion on the network.

In addition, O2 has provided written assurances that:

• it will not reinstate these (or any similar) traffic management practices without telling us and updating its website first; and
• it will write to Ofcom as soon as possible, and no later than 30 April 2019, to confirm its compliance with these commitments.

Given these written assurances, we are satisfied that no further action is required at this time.

We will publish further updates on our work under this enforcement programme in due course.

Today, we are closing with no further action the investigations we opened on 6 March 2018 into Three and Vodafone. For more information on the Three case, please see the Three case page. For more information on the Vodafone case, please see the Vodafone case page.

We will publish further updates on our work under this enforcement programme in due course.

We continue to gather information and to engage with ISPs to assess their compliance with the EU Open Internet Access Regulation 2015. If we decide it is appropriate to take formal enforcement action, it will be announced via our Competition and Consumer Enforcement Bulletin. We will publish further updates on our work under this enforcement programme in due course.

We have revised the scope of this investigation to include the Roaming Regulation and the related CIR in addition to the EU Open Internet Access Regulation. For more information and future updates on this investigation please see: https://www.ofcom.org.uk/about-ofcom/latest/bulletins/competition-bulletins/open-cases/cw_01218

Following an assessment of evidence gathered under this enforcement programme, Ofcom has decided to open investigations into Hutchison 3G UK Limited (Three) and Vodafone Limited (Vodafone) to assess their compliance with the EU Open Internet Access Regulation 2015 .

The investigations will examine the following:

Three’s practices of:

• Restricting tethering – the practice of using one device to connect another one to the internet - on certain plans offered by Three;
• Imposing restrictions on the devices in which a SIM can be used – e.g. where a SIM purchased for a mobile phone cannot be used in a tablet; and
• Traffic management practices such as ‘throttling’ or intentionally slowing down particular categories of traffic (e.g. video traffic, Peer-to-Peer and Virtual Private Network traffic), including where traffic management is applied when customers are roaming.

In relation to Vodafone:

• Traffic management practices relating to ‘Vodafone Passes’ – e.g. throttling particular categories of traffic – including where traffic management is applied when customers are roaming; and
• The transparency of exceptions to zero rating within the ‘Vodafone Passes’ products, which mean that certain functions within certain zero-rated applications will use customers’ general data allowance and not be zero-rated.

We are continuing to review the information gathered from other fixed and mobile internet service providers under this programme. We expect to publish a further update on both investigations and any other relevant work under this programme in June 2018.

The ‘open internet’ is the principle of ensuring that web users control what they see and do online – not the broadband provider that connects them to the internet. It’s about people being free to access all lawful internet content equally, without broadband providers discriminating against particular services or websites.

Under EU regulations, which came into effect on 30 April 2016, broadband providers must treat all internet traffic on their networks equally, and must not give preferential treatment to any particular sites or services.

Providers may, however, use certain reasonable measures to manage their internet traffic, to ensure their networks run efficiently. But they must be clear and transparent about their traffic management policy and practices. These traffic management measures must be based on technical quality of services reasons, and cannot be used for longer than necessary.

The EU Open Internet Access Regulation 2015 requires Ofcom to monitor and ensure UK providers comply with these rules. Ofcom is opening the programme in fulfilment of that obligation. Whilst we have been informally monitoring ISP traffic management practices since even before the Regulation became effective, the programme will focus on gathering further information to assess whether any ISP traffic management practices raise specific concerns under the EU Open Internet Access Regulation 2015. We may also consider any compliance concerns in relation to other practices covered by the Regulation under this programme.

Should we identify specific issues, we may initiate separate investigations of named providers and take enforcement action against them if appropriate. Where we do so, these will be announced via our Competition and Consumer Enforcement Bulletin.

We aim to publish a further update on this programme by June 2018.