Elections for the European Parliament are less than a year away and before that time Ms. Kroes wants to push through a “single market” package, including Net Neutrality provisions. She emphasized that compromise would be needed.
The concept of Net Neutrality was adopted in the EU in November 2009, when it was given formal recognition under the EU Telecoms Reforms. While the concept of “Net Neutrality” was not specifically defined, under the Reforms national telecom regulatory authorities were required to promote “the ability of end users to access and distribute information or run applications and services of their choice.” At the time the EC promised to monitor the matter closely and Ms. Kroes has stuck to her word.

In April 2011 the EC reported on a wide-ranging public consultation on the matter. In those findings, the EC stated, “Much of the net neutrality debate centers around traffic management and what constitutes reasonable traffic management.”

So what does constitute “reasonable traffic management”? Sandvine answered that question for the EC when, in July 2012 it launched a further consultation on “specific aspects of transparency, traffic management and switching in an Open Internet”. Sandvine suggested five elements to “reasonable network management”:

1. Legitimate and demonstrable technical need
2. Narrowly-tailored
3. Proportional and reasonable effect
4. Transparent disclosure
5. Auditability

Legitimate and Demonstrable Technical Need. The operator must have a legitimate and demonstrable technical need for the network management practice.  The various types of Internet access network architectures have inherent strengths and weaknesses that provide the majority of the technical needs for network management.  Additional technical needs may arise due to implementation-specific details of various access infrastructure vendors, backhaul and core network architecture.

Narrowly-Tailored. All networks have variation in usage patterns, whether by time of day, by geography, by user demographics, or by other factors. As a consequence, oversubscription and users’ quality of experience are non-uniform across the network. A reasonable traffic management plan takes this into account, and focuses as narrowly as possible on the problem to be solved, only where and for whom it occurs. It applies itself differently, or not at all, depending on the conditions which are currently present.

Proportional and Reasonable Effect. The impact of a reasonable network management policy must be proportionate to the problem being solved. It would be considered unreasonable by most to take a subscriber causing 15% of the congestion on a constrained network resource, and manage their bandwidth to 1% of peak rate.

Transparent Disclosure. The operator must make the material information required to understand the congestion management policy publicly available to those impacted by it.  The disclosure should be sufficient for a consumer to develop an informed opinion on whether the practice will affect them, which applications might be affected, when they might be affected, and what the impact might be, including impact to speed, latency and overall quality of experience.

Auditability. Owing to the public scrutiny of capital investment in networks, and congestion management policies, it becomes important for operators to be able to demonstrate that the above criteria were indeed met.  On audit, an operator should be able to provide:

1. What the technical need was that caused the creation of the network management policy
2. What affect the policy had on subscriber experience
3. How the policy was disclosed to the end-user
4. How the policy was narrowly tailored to take into account network and time variances, for example.

The audit should be able to demonstrate the above criteria were met using technical results.

Sandvine is not the only advocate for this type of approach to reasonable network management. In October 2009, Canada recognized the importance of some of same principles in its framework for determining acceptable Internet Traffic Management Practices (ITMPs). Canadian operators now must describe an ITMP it employs, as well as the need for it and its purpose and effect. In cases where an ITMP results in any discrimination or preference amongst traffic types, Canadian operators must (among other factors):

• demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;
• establish that the ITMP results in discrimination or preference as little as reasonably possible

In the United States, the FCC’s rules relating to Preserving the Free and Open Internet are all subject to “reasonable network management”, which the FCC defines:

“A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.”

The reality remains as it has since 2008 when the Net Neutrality debate began: an unmanaged network is not a neutral network. Left unmanaged, certain applications are engineered by their authors to consume (literally) as much available bandwidth as possible and a certain, small proportion of users will consume the vast majority of bandwidth, affecting the experience for the rest of us. Traffic Management is needed to ensure a neutral network. Regulators in Canada and the US recognized this in creating their rules. In another speech to the European Parliament today, Ms. Kroes demonstrated her recognition of this fact as well, as she outlined her version of Net Neutrality:

1. Allow innovation in new services, such as a high quality Internet service for video conferencing
2. Ensure transparency, such as the actual speed  a user can expect when they subscribe to a tier
3. Choice in Internet services, with low switching costs
4. No anti-competitive behaviour, such as through operators degrading or blocking competitive over the top services like VoIP or messaging services – like Skype or WhatsApp

To make things clear on reasonable traffic management, Ms. Kroes added:

“The fact is, the online data explosion means networks are getting congested. Internet Service Providers need to invest in network capacity to meet rising demand: and the right predictable regulatory framework will help them do so. But, at peak times, traffic management will continue to play a role: and indeed it can be for legitimate and objective reasons; like separating time-critical traffic from the less urgent.”

This does not seem like a compromise, but rather another major step forward for Net Neutrality.