FCS Member Briefing – Ofcom publishes new Net Neutrality Guidelines

On 26 October 2023 Ofcom issued the outcome of its Net Neutrality review and has updated its guidance.  This briefing pulls out the key messages from the review.  Statement Net Neutrality Review (ofcom.org.uk)

What is net neutrality? – Net neutrality supports the ‘open internet’, ensuring that users of the internet (both consumers and those making and distributing content) are in control of what they see and do online – not the broadband or mobile providers (otherwise known as internet service providers or ISPs). The net neutrality rules make sure that the traffic carried across broadband and mobile networks is treated equally and particular content or services are not prioritised or slowed down in a way that favours some over others. 

What has Ofcom decided? – In general, Ofcom has decided that net neutrality has worked well and supported consumer choice as well as enabling content providers to deliver their content and services to consumers. However, there are specific areas where more clarity is given to enable ISPs to innovate and manage their networks more efficiently, to improve consumer outcomes: 

• ISPs can offer premium quality retail offers: ISPs can offer premium packages, as long as they are sufficiently clear to customers about what they can expect from the services they buy.
• ISPs can develop new ‘specialised services’: New 5G and full fibre networks offer the opportunity for ISPs to innovate and develop their services. Ofcom’s updated guidance clarifies when they can provide ‘specialised services’ to deliver specific content and applications that need to be optimised, which might include real time communications, virtual reality and driverless vehicles.
• ISPs can use traffic management measures to manage their networks: Traffic management can be used by ISPs on their networks, so that a good quality of service is maintained for consumers. The updated guidance clarifies when and how ISPs can use traffic management, including the different approaches they can take and how they can distinguish between different categories of traffic based on their technical requirements.
• Most ‘zero-rating’ offers will be allowed: Zero-rating is where the data used by certain websites or apps is not counted towards a customer’s overall data allowance. Ofcom will generally allow these offers, while setting out the limited circumstances where they might have concerns. Ofcom are unlikely to have concerns where ISPs take reasonable approaches to provide services with clear public benefit including: access to emergency services, parental controls, internet traffic on transport and in public spaces where there is limited capacity available, and preventing access to scam websites and other harmful content.

Ofcom has also set out its approach to monitoring compliance with the net neutrality guidelines and ISPs need to make sure that they have appropriate policies and procedures in place to provide information to Ofcom on request.

Finally, Ofcom sets out views on the possibility of allowing ISPs to charge content providers for carrying traffic, which might lead to more efficient use of networks. While there are potential benefits to a charging regime, Ofcom has not yet seen sufficient evidence that this is needed and believe there is enough flexibility provided for ISPs in the other proposals. 

Ofcom has updated its guidance on net neutrality Net Neutrality Annexes (ofcom.org.uk) and ISPs are encouraged to review the guidelines to make sure they are compliant.  If further information is required on the guidelines, please contact fcs@fcs.org.uk .