On 24 June, Ofcom published a discussion paper on the practice of Internet traffic management – thea technique used by network operators and ISPs to stem or accelerate the flow of traffic over the Web.

The practice allows network operators and ISPs to handle traffic more efficiently, to prioritise traffic by type, to guarantee bandwidth or to block or degrade the quality of certain content. However, it has also led to concerns that network operators and ISPs could engage in anti-competitive behaviour and suppress the quality of content from provider services.

Ofcom has some existing powers and duties which could be applied to traffic management, for example, by requiring suppliers to be transparent about their traffic management practices. These will be strengthened by amended EU rules that will be transposed into UK law in 2011. In addition Ofcom has existing competition powers that may be relevant.

Ofcom states that the purpose of the discussion paper is to open up a discussion on how these existing and future powers might be used to address traffic management concerns and what stance Ofcom should take on any potential anti-competitive discrimination. There are also questions about transparency and consumers' awareness of the traffic management policy of the broadband service they have paid for.

Ofcom Chief Executive, Ed Richards said 'New EU rules give regulators a clear responsibility to address the emerging issues around traffic management. The question is how Ofcom uses these and existing powers to further the interests of consumers, while supporting vibrant, innovative content production and network deployment. The internet is playing an increasingly central role in the lives of citizens, consumers and industry. It provides access to an ever growing range of content, applications and services that we have come to both expect and depend on. How this access is controlled by ISPs affects us all and is of wide reaching significance. At the heart of this discussion is how to ensure that traffic management practices are transparent and how to ensure that traffic management is not used for anti-competitive discrimination.'

Ofcom has existing powers and duties in this area and these will be strengthened by amended EU rules that will be transposed into UK law in 2011. These include potential powers to oblige operators to be transparent about the traffic management techniques that they put in place.

Ofcom is seeking preliminary views on the issues raised in its discussion paper. It will also conduct a series of roundtables with industry, citizen and consumer groups over the summer.

The discussion paper can be found here. The exercise closes on 9 September 2010.

The questions highlighted in the paper are as follows:

1. How enduring do you think congestion problems are likely to be on different networks and for different players?
2. What do you think are possible incentives for potentially unfair discrimination?
3. Can you provide any evidence of economic and or consumer value generated by traffic management?
4. Conversely, do you think that unconstrained traffic management has the potential for (or is already causing) consumer/citizen harm? Please include any relevant evidence.
5. Can you provide any evidence that allowing traffic management has a negative impact on innovation?
6. Ofcom's preliminary view is that there is currently insufficient evidence to justify ex ante regulation to prohibit certain forms of traffic management. Are you aware of evidence that supports or contradicts this view?
7. Ofcom's preliminary view is that more should be done to increase consumer transparency around traffic management. Do you think doing so would sufficiently address any potential concerns and why?
8. Are you aware of any evidence that sheds light on peoples' ability to understand and act upon information they are given regarding traffic management?
9. How can information on traffic management be presented so that it is accessible and meaningful to consumers, both in understanding any restrictions on their existing offering, and in choosing between rival offerings? Can you give examples of useful approaches to informing consumers about complex issues, including from other sectors?
10. How can compliance with transparency obligations best be verified?

Under what circumstances do you think the imposition of a minimum quality of service would be appropriate and why?

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