The regulator has responded to operator calls for more flexibility, with its proposed approach to zero-rating signalling a departure from the EU
Ofcom supports net neutrality but recognises market developments: Ofcom has proposed to update its guidance on how net neutrality rules should apply in the UK. The current rules stem from the EU’s 2015 Open Internet Access Regulation, which was largely transposed into UK law post-Brexit. Ofcom considers that net neutrality has been vital to allowing people to access the digital content and services they want; however, it acknowledges significant developments in the online space, including a surge in demand for capacity and the emergence of large content providers (e.g. Netflix) and new technology such as 5G. Ofcom also considers that existing regulation constrains the ability of telcos to develop new services and manage their networks. In its view, supporting innovation (by both operators and content providers) will help to improve consumers’ choices and experiences online. As such, Ofcom is proposing more clarity in its guidance so that telcos can:
Offer premium quality retail broadband or mobile packages, e.g. ones with low latency;
Develop new ‘specialised services’, which could include supporting applications like virtual reality and driverless cars;
Use ‘traffic management’ measures to avoid network congestion at peak times; and
Offer ‘zero-rating’ packages in many circumstances, which means not charging users for access to certain services.
UK proposes a more hands-off approach to zero-rating than the EU: The outbreak of COVID-19 highlighted the importance of having a flexible approach to zero-rating access to certain content, including government websites and health information. This consideration has been at the heart of Ofcom’s net neutrality review, with statements from some operators that they struggled to zero-rate educational material during the pandemic serving as a driving force behind the regulator proposing to reconsider its guidance. In contrast, the EU has taken a hardline on zero-rating following ECJ rulings in September 2021 that it is incompatible with open internet rules. German regulator BNetzA responded quickly to the decisions by prohibiting zero-rated offers from Deutsche Telekom and Vodafone, while BEREC’s updated net neutrality guidelines now leave little scope for operators to employ the practice. With Ofcom no longer having to follow the body’s advice, zero-rating will be another policy area after data protection on which the UK is set to diverge from the EU.
Regulator yet to see evidence that ‘fair share’ is required: Ofcom has also outlined its views on the possibility of allowing operators to charge content providers for carrying traffic, which it thinks might lead to a more efficient use of networks. Calls for tech firms to pay their fair share of telecoms network costs have sparked intense debate in the EU, with the EC due to publish a consultation on the matter early next year. While Ofcom considers there are potential benefits to this kind of charging regime, it has not yet seen sufficient evidence that it is needed and believes there is flexibility provided for operators in its other proposals. Ofcom adds that it recognises the difficulties that designing an effective charging system raises. Having gathered support for their cause, large EU telcos will soon need to present compelling and justifiable mechanisms for how fair share could be implemented in practice while upholding net neutrality principles.
Source: https://www.ofcom.org.uk/consultations-and-statements/category-1/net-neutrality-review
