Follow-up report to the EU Summit on ‘The Open Internet and Net Neutrality in Europe', Brussels, 11 November 2010 

Lobbyists from the UK regulator Ofcom have been active in the European Parliament, against net neutrality. How can this be consistent with their role as regulator, and their duty to promote the ability of citizens to access and distribute content, applications and services?

According to sources in the European  Parliament, lobbyists from Ofcom have been calling in person on MEPs recently to discuss the issue of net neutrality. In particular, it is understood that  Ofcom  opposes a principle of

At the EU summit on The Open Internet and Net Neutrality in Europe',   attended by both the European Commission and members of the European Parliament,  Ofcom urged caution on the EU.

Ofcom's representative at the summit, Alex Blowers, said that   " discrimination is neither a good thing nor a bad thing,"  and  suggested that, as a ‘corollary to the discussion on discrimination'  consumers should use ‘their  sovereign power'  to exercise choice.  He claimed that "The scale of harm is negligible in our own jurisdiction." (meaning the UK).   The  UK user community would almost certainly disagree with him. 

Referencing the Telecoms Package, he said cryptically that "Quality of service would be something we'd apply if a 2-tier Internet became a reality".  

It is interesting to compare Mr Blowers' remarks at the EU summit with comments that he made a Westminster eForum seminar for the UK parliament. He said that  it would make economic sense for the  ISP and television "sides of the business to merge", followed by these statements:

"If we could ever get agreement on terms, so that terms are used in a consistent way between providers, and the forms of traffic management that they use. The classic example is that some providers will say ‘we have some restrictions on traffic during the busy hour. ...The busy hour... on some networks is 11 hour period, on others  a 7 hour period.... there is some low-hanging fruit here which could be knocked off quickly, which would give people clarity'."

"The other thing that we've talked about  is trying to convert the  language of restrictions into a  clearerkind of language about what that will mean  for using your connection. So if you are predominantly interested in using your network to do certain things, will this form of traffic management, like routine throttling of P2P, affect your ability to do that? It's kind  of like a ‘which fridge" dimension, what you want to use the product  for and whether you will be able to do so"

"A third thing underpinning this is the need to be verified. Our thoughts are unformed on that. We'd like to get a position where we could verify if declared traffic management policies are being complied with. ...that could be through a form of self-verification ... some sort of consumer crowd sourcing, where people could look at it through online tools and see whether they are being throttled..."

These statements indicate that Ofcom knows that British Internet users are having their services restricted by the operators for up to 11 hours per day, and yet the regulator  does not perceive that such long disruption to service is an issue for intervention.  Surely, the role of the regulator is to arbitrate and establish a balance between industry players and consumers, and given that brief, it is not right for the regulator to automatically come down on the side of industry?

The language of ‘knocking off low hanging fruit' seems to me to be a rather casual attitude, inappropriate to a regulator.  The ‘clearer language' request should also be questioned, as it does rather suggest a  cover up, along the lines of ‘if you don't use the word ‘restrictions' the users won't notice'.  Moreover, comparing an Internet subscription to buying a fridge fails to acknowledge the nature of a communications service. 

The idea that the regulator is so weak that they have to get consumers checking on their own connections, rather than insist on an industry audit,  is very worrying. 

The concern, from the citizens' viewpoint, is twofold. One,  that Ofcom  would appear to be in bed with industry. And secondly, that  this kind of politicking is inappropriate for the regulator, and should be left to the UK government  - namely the  department  of   Business, Innovation and Skills, which was also represented at the EU summit and the UK seminar.

It is the role of the government department to come up with policy, and the role of the regulator to ensure that the policy is implemented in a fair way. It is impossible for an organisation which is lobbying for a particular political position to arbitrate fairly.

And, it is arguably in contravention of the EU framework which demands that the regulator is politically independent. Ofcom does not appear to me to be politically independent on this issue, and this is a concern from the citizens' perspective.

In the spirit of the cuts, perhaps a quick slice into Ofcom would be welcomed.

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010)  Ofcom lobbies Brussels against net neutrality , http://www.iptegrity.com 18  November 2010.