80R (16) 94

BEREC Guidelines on
the Implementation by National Regulators
of European Net Neutrality Rules

 Background and general aspects
1. These BEREC Guidelines drafted in accordance with Article 5(3) of the
Regulation‘ are designed to provide guidance on the implementation of the
obligations of NRAs. Specifically, this includes the obligations to closely monitor
and ensure compliance with the rules to safeguard equal and non-discriminatory
treatment of traffic in the provision of internet access services and related endusers rights as laid down in Articles 3 and 4. These Guidelines constitute
recommendations to NRAs, and NRAs should take utmost account of the
Guidelines? The Guidelines should contribute to the consistent application of the
Regulation, thereby contributing to regulatory certainty for stakeholders

Terminology
2. For the purpose of these Guidelines. BEREC has used the following terms

throughout the Guidelines to improve readability?
1 Regulation (EU) 2015/2120 of the European Parliament and at the Council of 25 November 2015
laying down measures concerning open internet access and amending Diredive 2002/221EC on
universal service and users' rights relating to electronic communications networks and services and
Regulaion (EU) No 531/2012 onroam'ng on public mobile communications networkswithin the
Union)
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" As set out in Article 3(3) of the Regulation (EC) No 1211/2009 estabishing the Body of European
Regulators
at
Electronic
Communications
and
the
Office.
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W and recital 19 of

Regulation (EU) 201512120

3 Definitions of terms used in the Regulation are provided in the relevant parts of the Guidelines

 Application

In these Guidelines. BEREC use the term “application" as a short
expression for more lengthy expressions from the Regulation, like
“applications and services“, “content, application and service“. In
the choice of using “application" or "service", BEREC finds that
“application" is better to distinguish from the underlying electronic
communication service which on the other hand an be referred to
as a “service",
CAP (Content CAPS make content (e.g. web pages, blogs, video) and/or
and
applications (e.g. search engines, VolP applications) and/or
Application
services available on the Internet. CAPs may also make content,
Provider
services and a - olications available via s-ecialised services.
ISP
(Internet In these Guidelines, BEREC uses the term "ISP" to refer to
Service
providers of internet access services (IAS). ISPs may also be
Provider
-roviders of s~ecialised services.
Specialised
In these Guidelines, BEREC uses the term "specialised services"
service
as a short expression for "services other than internet access
services which are optimised for specific content, applications or
services, or a combination thereof, Miere the optimisation is
necessary in order to meet requirements of the content,
applications or services for a specific level of quality" (ref. Article

35 .

Article 1
Subject matter and scope
This Regulation establishes common rules to safeguard equal and non-discriminatory
treatment of traflic in the provision of intemet access services and related end-usess‘ rights.
new
This Regulation sins to establish ccmmon rules to lefewu‘d equal md non—discriminant)! merit of traffic
in the provision ot‘ internet access mice- ltd related aid-users' rides. It sims to protect end-users ltd
lirrlllmeously to grantee the cortinued finctioning of the mend ecosynun as In cigine of "Innovation.

Mill
The meuiuel provided for in this Regulation respect the principle oftechnological neils'sl'ly. that is to say they
neithu’ inuoee nor discriminne in favor: ofthe use of: paticulu' type oftechnology.

Milli
The irianet has developed we the past decades as an opai phtform for imovaicn with low access busier: for
aid-uses. providers ofcomenl. applimions mil services and providers ofintunet access services. The existing
regulaay hnewuk lime to prunetc the chilly of aid-uses to access I'td distribute infumltion or run
applications ltd suvices of their choice However. a simmer! nimble- of end-users re efl‘ected by tnflic
mingunmt practices which block or slow down specific mplicflinns it lavicee. Those tuiduicies require
conlnon rules at the Union level to enm theopenneu «the internet and to avoid frag-nannies: «the irlerml
umrka resulting from meesu'es adopted by iidividunl Matter States.

3.

Article 1 sets out the subject matter and scope of the Regulation, which is to
establish common rules to safeguard “equal and non—discrirrinatory treatment of

traffic in the provision of internet access services” and 'related end-users’
rights’.

 4.

According to the Framework Directive‘, ‘end-user" means a user not providing
public communications networks or publicly available electronic communications
services. In turn. 'user’ means a legal entity or natural person using or
requesting a publicly available electronic communications service, On that basis.
BEREC understands ‘end-user” to encompass individuals and businesses,
including consumers as well as CAPs.

5.

CAPS are protected under the Regulation in so far as they use an IAS to reach
other end-users. However. some CAPs may also operate their own networks
and, as part of that, have interconnection agreements with ISPs: the provision of
interconnection is a distinct service from the provision of IAS.

6.

NRAs may take into account the interconnection policies and practices of lSPs

in so far as they have the effect of limiting the exercise end-user rights under
Article 3(1). For example. this may be relevant in some cases. such as if the
interconnection is implemented in a way which seeks to circumvent the

Regulations.

Article}
Definitions
Fix the purposes of this Regulation, the definitions set out in Article 2 of Directive

2002/21/EC apply. The following definitions also apply.
7.

The definitions of Article 2 of Directive 2002/21/EC also apply for the purposes
of these Guidelines. This includes the terms 'end-user'. 'oonsumer', 'electrom'c

4 Article 2 of Framework Directive (2002I21IEC) ref. lit (n) and lit. (h). The direaive has been
amended by the regulation 717/2007IEC the regulation 544I20091EC and the directive mnemonic

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5 Recital 7: 'Such agreemerts as we! as any commercial practices of providers of heme! access
services. should not limit the exercise of those rights and thus circumvent provisions of this
Regulation safeguardhg open internet access'

 communications services', 'electronic communications network' and 'nelwork
termination point (NTP) '.

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(1) ‘provider of electronic communications to the public‘ means an undertaking providing
public communications networks or publicly available electronic comrmmications services;
8. The term 'provider of electronic communicafions to the public” (PECP)
comprises
both
'public communications networks” and
'electronic
comnwnioafions services' (ECS), which are defined in Article 2 of the

Framework Directive.“
9.

Conversely. the definition of PECP does not cover providers of electronic
communication services or communication networks that are not publicly

available. which are therefore out of scope of this Regulation.
10. Electronic communication services or networks that are offered not only to a
predetermined group of end-users but in principle to any customer who vents to
subscribe to the service or network should be considered to be publicly
available. Electronic communication services or networks that are offered only to
a predetermined group of end-users could be considered to be not publicly
available.
11. Regarding virtual private networks (VPN) network services, these are typically
provided by the ISP to anyone that wishes to enter a contract about the
provision of such a service, and these would therefore typically be considered to
be publicly available, The term ‘private‘ describes the use of such a service
which is usually limited to endpoints of the business entering the contract and
secured for internal communications. In accordance with Recital 17. to the
extent that VPNs provide access to the internet, they are not a closed user
group and should therefore be considered as publicly available E08 and are

6 Ref. Article 2 letter (d) for “public communications network' and letter (c) for “electronic
communications service'

 subject to Articles 3(1)—(4). VPNs are further discussed in paragraph Business
customers often request services relating to virtual private networks (VPN),
which are also discussed in paragraph Regarding virtual private networks (VPN)
network services. these are typically provided by the ISP to anyone that wishes
to enter a contract about the provision of such a service. and these would
therefore typically be considered to be publicly available. The term ‘private‘
describes the use of such a service which is usually limited to endpoints of the
business entering the contract and secured for internal communications In
accordance with Recital 17. to the extent that VPNs provide access to the
internet. they are not a closed user group and should therefore be considered as
publicly available ECS and are subject to Articles 3(1)-(4). VPNs are further
discussed in paragraph Business customers often request services relating to
virtual private networks (VPN). which are also discussed in paragraph
Regarding virtual private networks (VPN) network services. these are typically
provided by the ISP to anyone that wishes to enter a contract about the
provision of such a service. and these would therefore typically be considered to
be publicly available. The term ‘private‘ describes the use of such a service
which is usually limited to endpoints of the business entering the contract and
secured for internal communiwtions. In accordance \M'th Recital 17, to the

extent that VPNs provide access to the internet. they are not a closed user
group and should therefore be considered as publicly available ECS and are
subject to Articles 3(1)-(4). VPNs are further discussed in paragraph Business
customers often request services relating to virtual private networks (VPN),
which are also discussed in paragraph 11 above. The term VPN can be used in
relation to two different types of services:. above. The term VPN can be used in
relation to two different types of services:. above. The term VPN an be used in
relation to two different types of services:.
12. The following examples could be considered as services or networks not being
made publicly available. subject to an assessment of the facts of the case by
NRAs as well as national practices:
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access to the internet provided by cafés and restaurants (e.g. Wi-Fi
hotspots). since they typically are limited to customers of an enterprise
rather than the general public;
Internal corporate networks. since they are typically limited to employees
and other people connected with the business or organisation concerned.

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(2) ‘intemet access service’ means a publicly available electronic cctmnunications service
that provides access to the internet, and thereby connectivity to vintually all end points of
the internet, ine
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ctive of the network teclmol

and terminal

ui ment med.

An imam! acceu Iavice provider actor: to the htunet. aid in priieiple to all the end-points "woof.
inerpective ot'the network technology lid lamina] equipmem used by aid-users. Howeve. {or ream otlside
the control of providers of imemet access mvicel. main and pains of the internet may not always be
accmiblc. Thad'ae. sudl provident should be deemed to have coughed with their obligflionl related to the
pmvixim of m baa-net acceu service within the memiru of this Regulation when Ihu service provide
comedivity to virtually all and pair" of the Mann. Provide" afixlemet access mice: lhwld thaefore nu
ran-in comectivity to my accessible aid-poms ol‘the internet

 13. Article 2(2) defines an ‘internef access service' (IAS) as an ECS that provides
access to the internet and thereby connectivity to virtually all end points of the
internet. irrespective of the network technology and terminal equipment used,

14. For the purpose of the Regulation. BEREC understands the term ‘internet' as
referring to a global system of interconnected networks that enables connected
end-users to connect to one another. An IAS enables such access to the
internet.

15. BEREC understands the term ‘connectr'vify to virtually all end-points' as a
consequence of the fact that the internet is a distributed system where a single
ISP controls a rather limited part. Due to reasons outside the control of an
individual ISP (e.g. technical limitations. the policy of other lSPs or regulation in
some countries). not all endpoints might be reachable all of the time, However,
such a lack of reachability should not preclude that the service is defined as an

IAS.
16. Where restrictions to reach end-points stem from the use of two different
internet addressing schemes. IPv4 and IPv6. this typically does not mean the
services cannot be defined as an IAS. While it is not possible to connect two
different points with different types of addresses without any translation function.
BEREC considers that the term 'virtually all end points' should. at present, not
be interpreted as a requirement on ISPs to offer connectivity with both IPv4 and

IPv6.

17. BEREC understands a sub-internet service to be an IAS which would restrict
access to services or applications (e.g. banning the use of VolP or video
streaming) or would enable access to only a pre-defined part of the internet (e.g.
access only to particular websites), NRAs should take into account that an ISP

could easily circumvent the application of the Regulation by providing such subinternet offers. These services should therefore be considered to be in the

scope of the Regulation and the fact that such offers provide a limited access to
the internet should qualify as an infringement of Articles 3(1). 3(2) and 3(3) of
the Regulation. BEREC refers to these service offers as “sub«internet services“,
as further discussed in paragraph If an ISP contractually (as opposed to
technimlly) banned the use of specific content. or one or more
applications/services or categories thereof (for example, banning the use of
VolP) this would limit the exercise of the end-user rights set out in Article 3(1).
This would be considered to be an offer of a sub-internet service (see paragraph
BEREC understands a sub-internet service to be an IAS which would restrict
access to services or applications (e.g. banning the use of VolP or video
streaming) or would enable access to only a pro-defined part of the internet (e.g.
access only to particular websites). NRAs should take into account that an ISP
could easily circumvent the application of the Regulation by providing such subinternet offers These services should therefore be considered to be in the
scope of the Regulation and the fact that such offers provide a limited access to
the internet should qualify as an infringement of Articles 3(1), 3(2) and 3(3) of
the Regulation. ). and In case of agreements or practices involving technical
discrimination, this would constitute unequal treatment which would not be
compatible with Article 3(3)‘ This holds in particular for the following examples: .

18. Applications where the amount of reachable end-points is limited by the nature
of the terminal equipment used (everything used beyond the network

 termination point) are outside the scope of the Regulation. This includes
applications designed for communication with individual devices, such as e-book
readers as vsell as machine-to-machine7 devices like smart meters etc.). Such
applications should not be used to circumvent this Regulation, e.g. by means of
other services usable or offered as a replacement for an IAS. The underlying
connectivity could be provided using a private network or an IAS or be part of a
specialised service where the application and connectivity is bundled. In the
latter two cases (IAS and specialised services). the underlying connectivity
service should comply with the Regulation.‘

7 However. some machineto—machirre commmication services may also represent a speciaised
service according to Article 3(5) of the Regulation (ref. Recital 16 and paragraph Typical examples of
specialised savices provided to end-users are \‘oLTE and liner broadcasters lP'I‘V services with specific QoS
requirunurts, subject to them meeting the requirements of the Regulation. in particular Article 3(5) first
strbparagaplt Under the same preconditions. other examples would include reel-time health services (e.g.
remote stugery) or "some services responding to a public interest or by some new inachinc-lo-machine
comratnicatiotts savices“ (Recital lo). 01 these Guidelines). Moreover. a provider of an M2M device or
M2M service (e.g. car manufacturer, provider of energy including smart meter) typically does not
seem to provide an ECS under the present regulatory framework. Whereas the oomectiw‘ty service
provider which provides connectivity over a public network tor remuneration is generally the provider
at an ECS in the loT value chain. ret. BEREC Report on Enabling the Internet otThings, 50R (16) 39,
pages 21-23.

8 Nawilhstanding. the provisions regard'ng specialised services apply - see paragraphs Beyond the
delivery of a relatively mgr quality application through the IAS. there can be demand for a category of
electronic cormnunicuion suvices that need to be carried at a specific level ofquality that camel be assured by
the sturdard best effort delivery-In deciding Mrether a specialised service is considered as a rquacanent for m
IAS. one inportaut sport that NRAs should assess is whetha the service is actually providing access to the
intranet but in a restricted way. at a higher quality. orwith differentiated trafl'rc management. If so. this would be
corrsidaed a circumvention of the Regulation.

 Article 3
Safeguarding of open internet access
19. Article 3 comprises measures intended to safeguard open internet access,
covering the rights of the end-users of IAS. and obligations and permitted
practices for the ISPs:
- Article 3(1) sets out the rights of end-users of IAS;
- Article 3(2) sets limits on the contractual conditions which may be applied
to IAS and the commercial practices of ISPs providing IAS. and requires
that these should not limit exercise of the end-user rights set out in
paragraph 1. When assessing commercial practices, Article 3(3) should
also be taken into account;
0 Article 3(3) constrains ISPs' traffic management practices, setting a
requirement that lSPs should treat all data traffic equally and making
provision for the specific circumstances under which ISPs may deviate
from thisrule;

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Article 3(4) sets out the conditions under which traffic management
measures may entail processing of personal data;
Article 3(5) sets out the freedom of ISPs and CAPs to provide specialised
services as well as the conditions under which this freedom may be
exercised.

Article 3(1)
End-users shall have the right to access and distribute information and content, me and
provide applications and services, and use terminal equipment of their choice, irrespective
of the end-user’s or provider’s location or the location, origin or destination of the
infonnation, content, application or service, via their internet access service.

This paragraph is without prejudice to Union law, or national law that complies with Union
law, related to the lawfulness of the content, applications or services
Mali
When accessing the inane. end-mess should be free to choose between various types oftenn'ml egiipma's as
defined in Omission Diective 2008/63/50 (1). Provider! of irlartet access services sharld nut inpose
restrictions an the use of taminsl equipmers connecting to the network in addition to than imposed by
Irianlt‘aml'us or distributors of terminal equiprnerl in accorrhrce with Union law.

Milli!
Eridanus should have the right to access md distrinle information and cement. md to use md provide

applications and savices wihotl discrimination. via their errand access savice The crevice of this right
should be without prejudice to Union law. or nlional law that complies wih Union law. warding the
lawfuhess of canted. applications or ravines. This Regulation does not seek to regulate the lawfulness of the
coma". Uplicnicna rt services. nu" does it sold: to result: the pmcodllu. rulimruaita aid safegtarda relaed
thereto. 11m: marten therefore remain subject to Union lsw. «animal lawthas conplies with Union law.

20. Article 3(1) sets out the end-users' rights with regard to the open internet. The
notion of end-user is explained in paragraph According to the Framework
Directive4. "end-user" means a user not providing public communications
networks or publicly available electronic communications services In turn. "user"
means a legal entity or natural person using or requesting a publicly available
electronic communications service. On that basis, BEREC understands "enduser" to encompass individuals and businesses, including consumers as well as

CAPs. of these Guidelines.

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21. Firstly. end-users have the right to access and distribute information and
content. ‘Access and distribute' means that the provisions of this Regulation
apply to both sending and receiving data over the IAS. ‘Infom'iation and content”
is intended to cover any form of data that can be sent or received over the IAS.

22. Secondly, end-users have the right to use and provide applications and
services. ‘Use and provide' means that the right applies both to consumption
and provision of applications and services. 'App/ications and services' means
both applications (including client and server software) as well as services.

23. Thirdly. end-users have the right to use terminal equipment of their choice.
Directive 2008/63/EC defines ‘terminal equipment” as ‘equipment directly or
indirectly connected to the interface of a public telecommunimtion network'. The
right to choose terminal equipment therefore covers equipment which connects
to the interface of the public telecommunications network. This interface. the
network termination point (NTP). is defined in Article 2 letter (da) of the
Framework Directive (2002/21/EC), meaning the physical point at which a
subscriber is provided with access to a public communications network.
24. In considering whether end-users may use the terminal equipment of their
choice, NRAs should assess whether an ISP provides equipment for its
subscribers and restricts the end-users' ability to replace that equipment with
their own equipment, i.e. provides ‘obligatory equipment'.
25. Moreover. NRAs should consider whether there is an objective technological
necessity for the obligatory equipment to be considered as part of the ISP
network. If there is not, and if the choice of terminal equipment is limited, the
practice would be in conflict with the Regulation. For example, the practice of
restricting tetheringg is likely to constitute a restriction on choice of terminal
equipment because ISPs 'should not impose restrictions on the use of terminal
equipment connecting to the network in addition to those imposed by
manufacturers or distributors of terminal equipment in accordance with Union
Iaw' (Recital 5).

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26. Article 3(1) second subparagraph specifies that Union law. and national lawthat
complies with Union law. related to the lawfulness of content, applications or
9 Tethering allows an end-user to share the intemet connection at a phone or tablet with other devices
such as laptops.

 services still applies. The TSM Regulation does not seek to regulate the
lawfulness of the content, applications or services (ref. Recital 6).
27. Whereas Article 3(1) second subparagraph contains a clarification with regard to
the applicability of such legislation. Article 3(3) letter (a) provides for an
exception for ISPs to implement measures going beyond reasonable traffic
management measures in order to comply with legislation or measures as

specified in that exception.

Article 3(2)
Agreements between providers of intemet access services and end-15ers on commercial and
technical conditions and the characteristics of intemet access services such as price, data
volumes or speed, and any commercial practices conducted by noviders of iiitemet access
services, shall not limit the exercise of the rights of end-users laid down in paragraph 1.
mm
In order to criticise the": rigit: to access md distribue infmnlion I‘Id email aid to use In! provide
applicuiom ltd service (1‘ their choice. aid-men Ihould he flee to agree with provide! of imanet men
mice: on tlifl‘ii for ipecific dn volume aid speeds of the irlaiict access savice. Such emails. as well
as my coiimercial practice: of providers of 'nternet Iccen services. thould not limi the arercise ofthcce r1311:
lid thus circumvmt provilims of this Regtlmm lafegin'ding opai Manet occur. Nlimal regularly Iid
othc carpet“ Iilhorities diould be anpowaed to irleivuie againn ageanau or commial practicewhich. by reason of their scale. lead to situdicns whee end-ulm‘ choice is maen'ally reduced 'Ii practice. To

this aid. the accounts! of caveman aid comnercial practice! rhould. inc alia. take inc occourl the
reopective maket positions of those provides of inemd access services. lid of the provide! of canted.
applicuiom and cavicel. tlnt re involved. Nltional regulata'y ltd othe- ccrrpetent mthoritiel should be
required. u put of their monitoring md ait‘orcanal function. to irlervuie when email or canmacial
practical would mull in the underm‘ning ofthe euence ofthe aid-tum“ ridits.

28. Article 3(2) clarifies that agreements between ISPs and end»users on
commercial and technical conditions and the characteristics of IAS such as
price, data volumes or speed, and any commercial practices conducted by ISPs
are allowed. but shall not limit the exercise of the rights of end-users laid down
in Article 3(1).
29. To BEREC's understanding, Article 3(2) contains two relevant aspects:
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the freedom to conclude agreements between ISPs and end-users relating
to commercial and technical conditions as well as characteristics of IAS;
the provision that such agreements and commercial practices shall not limit
the exercise of the end-users' rights laid down in Article 3(1).

30. Agreements refer to contractual relationships between ISPs and end-users that
may include, as stated in the Regulation, commercial conditions (such as
pricing). techniwl conditions (such as data volumes and speed) and any
characteristics of the IAS. It should be noted that it will often be the case that
commercial and technical conditions can be intertwined.

.

.

31. Commercial practices may consist of all relevant aspects of lSPs‘ commercial
behaviour. including unilateral practices of the  SP.‘°
lo NRAs should also consider whether the definition of “commercial practices‘ in Article 2(d) the
Unfair Commercial Practices Directive (UCPD) could also provide guidance in understanding the

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32. Vlfith regard to characteristics of lAS. agreeing on tariffs for specific data
volumes and speeds of the IAS would not represent a limitation of the exercise
of the end-users‘ rights (ref. Recital 7). Moreover. BEREC considers that. as
long as the data volume and speed characteristics are applied in an applicationagnostic way (applying equally to all applications). end-users' rights are likely to
be unaffected by these characteristics and conditions.

33. An ISP may bundle the provision of the IAS with an application. For instance, a
mobile operator may offer free access to a music streaming application for a
period of time to all new subscribers (as opposed to zero-rating, which is
explained in paragraphs A specific commercial practice is wiled zero-rating.
This is where an ISP applies a price of zero to the data traffic associated with a
particular application or category of applications (and the data does not count
towards any data cap in place on the lAS).There are different types of zerorating practices which could have different effects on end-users and the open
internet. and hence on the end-user rights protected under the Regulation.When assessing such agreements or commercial practices like zero-rating in
relation to Article 3(2). NRAs and other competent authorities should take into
account the aim of the Regulation to “safeguard equal and non-discriminatory
treatment of traffic" (Article 1) and to “guarantee the continued functioning of the
internet ecosystem as an engine of innovation" (Recital 1) as well as Recital 7.
which directs NRAs and other competent authorities to intervene against
agreements or commercial practices which. “by reason of their scale. lead to
situations where end-users' choice is materially reduced in practice". or which
would result in "the undermining of the essence of the end-users‘ rights").
Where the traffic associated with this application is not subject to any
preferential traffic rmnagement practice, and is not priced differently than the
transmission of the rest of the traffic. such commercial practices are deemed not
to limit the exercise of the end-users‘ rights granted under article 3(1).

34. When assessing agreements or commercial practices. NRAs should also take
Article 3(3) into account given that. typically. infringements of Article 3(3) (e.g.
technical practices. such as blocking access to appliwtions or types of
term. ref. ‘any ads. omission. course of conduct or representation. commercial communication
including advertising and marketing. by a trader, directly contracted with a promdion. sale or supply

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 applications) will directly limit the exercise of the end-users' rights, and
constitute an infringement of Articles 3(2) and 3(1). Details about this
assessment can be found in paragraphs A basic principle of the Regulation
relates to traffic management and is the obligation on ISPs to treat all traffic
equally when providing lAS.-NRAs should monitor that ISPs properly dimension
their network, and take into account the following: .

35. If an ISP contractually (as opposed to technically) banned the use of specific
content. or one or more applications/services or categories thereof (for example,
banning the use of VoIP) this would limit the exercise of the end-user rights set
out in Article 3(1). This would be considered to be an offer of a sub-internet
service (see paragraph BEREC understands a sub-internet service to be an IAS
which would restrict access to services or applications (e.g. banning the use of
VolP or video streaming) or would enable access to only a pre-defined part of
the internet (e.g. access only to particular websites). NRAs should take into
account that an ISP could easily circumvent the application of the Regulation by
providing such sub-internet offers. These services should therefore be
considered to be in the scope of the Regulation and the fact that such offers
provide a limited access to the internet should qualify as an infringement of
Articles 3(1). 3(2) and 3(3) of the Regulation. ).

36. However. some commercial conditions or practices. most obviously those
involving price differentiation applied to categories of data traffic. are more likely
to influence end-users‘ exercise of the rights defined in Article 3(1) without
necessarily limiting it

37. A specific commercial practice is called zero-rating. This is where an ISP applies
a price of zero to the data traffic associated with a particular application or
category of applications (and the data does not count towards any data cap in
place on the  AS).There are different types of zero-rating practices which could
have different effects on end-users and the open internet, and hence on the
end-user rights protected under the Regulation.

38. A zero-rating offer where all applications are blocked (or slowed down) once the
data cap is reached except for the zero-rated application(s) would infringe Article
3(3) first (and third) subparagraph (see paragraph In case of agreements or
practices involving technical discrimination. this would constitute unequal
treatment which would not be compatible with Article 3(3). This holds in
particular for the following examples:).

39. The ISP could either apply or offer zero-rating to an entire category of
applications (e.g. all video or all music streaming applications) or only to certain
applications thereof (e.g. its own services; the one specific social media
applications; the most popular video or music applications). In the latter case. an
end—user is not prevented from using other music applications. However, the
zero price applied to the data traffic of the zero-rated music application (and the
fact that the data traffic of the zero-rated music application does not count

towards any data cap in place on the IAS) creates an economic incentive to use
that music application instead of competing ones. The effects of such a practice
applied to a specific application are more likely to "undermine the essence of

the end-users’ rights” or lead to circumstances where 'end-users‘ choice is
materially reduced in practice" (Recital 7) than when it is applied to an entire
category of applications.

 40. When assessing such agreements or commercial practices like zero-rating in
relation to Article 3(2), NRAs W should take into

account the aim of the Regulation to "safeguard equal and non-discriminatory
treatment of traffic’ (Article 1) and to "guarantee the continued functioning of the
intemet ecosystem as an engine of innovation" (Recital 1) as well as Recital 7,
which directs NRAs Wm intervene against

agreements or commercial practices which. "by reason of their scale, lead to
situations where end-users‘ choice is materially reduced in practice", or which
would result in ‘the undermining of the essence of the end-users'rights'.

41. Recital 7 also indicates NRAs WWW should take into
account the 'respective market positions of those providers of internet access
servicw, and of the providers of content, applications and services, that are
involved'.

42‘ When assessing whether an ISP limits the exercise of rights of end-users, NRAs
should consider to what extent the end-users' choice is restricted by the agreed
commercial and technical conditions or the commercial practices of the lSF’. It is

not the case that every factor affecting end-users' choices should be considered
to limit the exercise of end-users' rights under Article 3(1). Such restrictions
would need to result in choice being materially reduced for this to qualify as a
limitation of the exercise of the end-users‘ rights.

43. In light of the aforementioned considerations, BEREC considers that a
comprehensive assessment of such commercial and technical conditions may
be required, mking into account in particular:
0 the goals of the Regulation and whether the relevant agreements and/or

0

commercial practices circumvent these general aims;
the market positions of the ISPs and CAPs involved: a limitation of the
exercise of end-user rights is more likely to arise where an ISP or a CAP
has a 'strong' market position (all else being equal) compared to a situation

where the ISP or CAP has a 'weak' market position, The market positions
should be analysed in line with competition law principles.
0

the effects on consumer and business customer end-user rights, which
encompasses an assessment of inter alia:

whether there is an effect on the range and diversity of content and
applications which consumer end-users may use and. if so, whether
the range and diversity of applications which end-users can choose
from is reduced in practice:
whether the end-user is incentivised to use, for example. certain
applications;
0 whether the IAS subscription contains characteristics which materially
reduce end-user choice (see in more detail in paragraph In applying
such a comprehensive assessment, NRAs and other competent
authorities may also take into account the following considerations).
the effects on CAP end-user rights. which encompasses an assessment of.
inter alia:
0 whether there is an effect on the range and diversity of content and
applications which CAPs provide, and to what extent the range and
diversity of applications rmy not be effectively accessed;
0

0

0

 0

whether CAPs are materially discouraged from entering the market or
forced to leave the market, or whether there are other material harms
to competition in the market concerned (see in more detail in the
fourth bullet of paragraph In applying such a comprehensive
assessment. NRAs and other competent authorities may also take
into account the following considerations: with regard to offers);

o

whether the continued functioning of the internet ecosystem as an
engine of innovation is impacted, for example. whether it is the ISP
that picks winners and losers. and on the administrative and/or
technical barriers for CAPs to enter into agreements with ISPs.
the scale of the practice and the presence of alternatives: a practice is
more likely to limit the exercise of end-user rights in a situation where, for
example. many end-users are concerned and/or there are few alternative
offers and/or competing lSPs for the end-users to choose from;
the effect on freedom of expression and media pluralism (ref. Recital 13).
44. Each of these factors may contribute to a material reduction in end-user choice
and hence a limitation of the exercise of end-users‘ rights under Article 3(2). In
any specific case. the presence of one or more of these factors may in fact limit
the exercise of end-user rights.

45. In applying such a comprehensive assessment, NRAs and other competent
authorities may also take into account the following considerations:

Any agreements or practices which have an effect similar to technical
blocking of access (see paragraph In case of agreements or practices
involving technical discrimination, this would constitute unequal treatment
which would not be compatible with Article 3(3). This holds in particular for
the following examples:) are likely to infringe Articles 3(1) and 3(2), given
their strong impact on end-user rights.
Commercial practices which apply a higher price to the data associated
with a specific application or class of applications are likely to limit the
exercise of end-users‘ rights because of the potentially strong disincentive
created to the use of the application(s) affected. and consequent restriction
of choice. Also. the possibility that higher prices may be applied to an
application or category of application may discourage the development of
new applications.
End-users of an IAS whose conditions include a lower (or zero) price for
the data associated with a specific application or class of applications will
be incentivised to use the zero—rated application or category of applications
and not others. Furthermore. the lower the data cap. the stronger such
influence is likely to be.
Price differentiation between individual applications within a category has
an impact on competition between providers in that class. It may therefore
be more likely to impact the ”continued functioning of the internet
ecosystem as an engine of innovation” and thereby undermine the goals of
the Regulation than would price differentiation between classes of
application.

 Article 3(3) first subparagraph
Providers of internet access services shall treat all tmfi‘ic equally, when providing intemet
access services, without discriminatim. restriction or interference, and irrespective of the
sender and receiver. the content accessed or distributed, the applicatiom or services used or
-: ~vided. orthe terminal uiment used.
W
When providing irlanet access lavicee. provide! of those revises should treat all trafi'rc equally. will!“
discrin'netiun. restriction or influence. indqxndenly of its «and: or receive. rental. qwlication or mice.
criminal emipmmt. According to small principle: of Union law md settled cue-hw. canpanble situations
lhoukl not be mod difl'amtly lid difl‘erent simian! should not be treated in the cane way Ink" wch

mum in objectively justified.
46. A basic principle of the Regulation relates to traffic management and is the
obligation on ISPs to treat all traffic equally when providing IAS. Typically.
infringements of this principle which are not justified according to Article 3(3)
would also constitute an infringement of the end-user rights set out in Article

3(1).
47. As Article 3(3) concerns the equal treatment of all traffic 'when providing
internef access service', the scope of this paragraph excludes lP
interconnection practices.
48. In assessing whether an ISP complies with this principle, NRAs should apply a
two~step assessment:
0 In a first step. they should assess whether all traffic is treated equally.
- In a second step. they should assess whether situations are comparable or
different and whether there are objective grounds which could justify a
different treatment of different situations (under Article 3(3) second

subparagraph — see paragraphs In assessing whether an ISP complies
with the principle of equal treatment set out in Article 3(3) first
subparagraph, NRAs should take into account whether a measure (which,
prima facie. appears to infringe this principle) is a reasonable traffic
management measure. The principle of equal treatment of traffic does not
prevent ISPs from implementing reasonable traffic management measures
in compliance with Article 3(3) second subparagraph.-BEREC understands
that "categories of traffic" should be clearly distinguished from specialised
services. below).
49. Moreover. NRAs should ensure that traffic on an IAS is managed:
0

o

‘Without discrimination, restriction or interference";

”irrespective of the sender and receiver. the content accessed or
distributed. the appliwtions or services used or provided, or the terminal
equipment used".
50. NRAs should take into account that equal treatment does not necessarily imply
that all end-users will experience the same network performance or 005. Thus.
even though packets can experience varying transmission performance (eg. on
parameters such as latency orjitter). packets can normally be considered to be
treated equally as long as all packets are processed agnostic to sender and
receiver. to the content accessed or distributed, and to the application or service
used or provided.

 51. Endpoint-based congestion control" (a typical example is Transmission Control
Protocol (T CP) congestion control) does not contravene Article 3(3) first
subparagraph since. by definition. it takes place within terminal equipment and
terminal equipment is not covered by the Regulation." NRAs should consider
network-internal mechanisms of ISPs which assist endpoint-based congestion
control” to be in line with equal treatment, and therefore permissible, as long as
these mechanisms are agnostic to the applications running in the endpoints and
a circumvention of the Regulation does not take place.
52. In case of agreements or practices involving technical discrimination, this would
constitute unequal treatment which would not be compatible with Article 3(3).
This holds in particular for the following examples:
0 A practice where an ISP blocks, slows down, restricts. interferes with.
degrades or discriminates access to specific content, one or more
applications (or categories thereon, except when justified by reference to
the exceptions of Article 3(3) third subparagraph.
0 IAS offers where the access to internet is restricted to a limited set of
applications or endpoints by the end—user's ISP (sub-internet service
offers) infringe upon Article 3(3) first subparagraph. as such offers entail
ll This should not be confused with network-intemal congestion management as described under
Article 3(3) letter (c))t IETF. RFC 5783. Congestion Control in the RFC Series

12 See details about terminal equipment under Article 3(1)

13 Active Queue Management, see IEI‘F. RFC 7567

 blocking of appliwticns and or discrimination, restriction or interference
related to the origin or destination of the information.
o A zero-rating offer where all appliwtims are blocked (or slowed down)
once the data cap is reached except for the zero-rated application(s), as it
would infringe Article 3(3) first (and third) subparagraph.
53. NRAs should apply a comprehensive assessment of compatibility with the
Regulation for all those IAS offers which are not as clear as the examples
mentioned in paragraph In case of agreements or practices involving technical
discrimination. this would constitute unequal treatment which would not be
compatible with Article 3(3). This holds in particular for the following examples: .

Article 3(3) second subparagraph

The first subparagraph shall not prevent providers of intemet access services from
implementing reasonable trafic management measures. In order to be deemed to be
reasonable, such measures shall be transparent, non-discriminatory and proportionate, and
shall not be based on commercial oomiderations but on objectively difi‘erent teclurical
quality of service requirements of specific categories of trafic. Such measures shall not
monitorthescific content andslnllnotbemaintained for] er thann - - .
W
11w objective of reasonsble trafic magnet is to cairibute to m dicial use ofnawork resource and to
m optimisaion of wall transmission gulity responding to the objectively difi‘crmt technical quality of

service requiemaits of specific categories of Mic. md thus of the cmtent. applicaions md services
trmsmitted. Reumsblc tnfic management memes implied by providers of sum access novices rhuild be
mpmt, nm-discriminuory and proportionste. aid should not be based on con'me‘c'nl considerations The
requirunmt for tralfic magmas m to be nm—discrimirflcs'y does mt prechlde providers (I intend
access services tram inplemuititg. in orda- lo oplirnbe the overall transmission (nullity. traffic magnets
mm which dlfl‘u’ersine betwem objectively difl‘a’ait categories d‘trsflic. Any such difl‘a'erfiuion should.
in order to optimise ovaall mality and use erpu'ialce. be parnitted only on the basis of objectively difl'e'al
teclmicsl quality of wvice require'nmts (for ample. in turns of latency. jitter. packd loss. lid b-idwiclh) of
the specific categories of tnfl'lc. and not on the basis of conunu'cicl confide-dime, Such differ-mining
them should be proportimne ‘n relnion to the ptlpoce of ovenll quslity optimisation lid should trea
equiv-lets Mic ecpslly. Such meesu’es should not be maintained for longs that necessxy.

mum
Resscnsble tnfl’rc msmgcmmt does not require techniques which men'sor the specific ccntem of date indie
transmitted vi- the harm accss service.

 Wm"
54. In assessing whether an ISP complies with the principle of equal treatment set
out in Article 3(3) first subparagraph. NRAs should take into account whether a
measure (which. prima facie, appears to infringe this principle) is a reasonable
traffic management measure. The principle of equal treatment of traffic does not
prevent lSPs from implementing reasonable traffic management measures in
compliance with Article 3(3) second subparagraph.

‘D

.,

55‘ In considering whether a traffic management measure is reasonable, NRAs
should in a first step assess whether the traffic management measure is
transparent. non-discriminatory and proportionate. These terms are legal

principles that are already used in every-day regulatory practice when applying
EU law and respective national law
56. Under Article 3(3), NRAs should require ISPs to provide transparent information
about traffic management practices and the impact of these practices (see also
Articles 4 and 5).

57‘ When considering whether a traffic management measure is non-discriminatory,
NRAs should consider the following:
o

The requirement for traffic management measures to be non-discriminatory
does not preclude lSPs from implementing - in order to optimise the overall
transmission quality and user experience - traffic management measures
which differentiate between objectively different categories of traffic (ref.

Recital 9 and below paragraphs In assessing Miether a traffic
management measure is reasonable, NRAs should assess the justification
put forward by the ISP. In order to be considered to be reasonable. a traffic
management measure has to be based on objectively different technical
QoS requirements of specific categories of traffic Examples for technical
QcS requirements are latency. jitter. packet loss. and bandwidth.-ISPs may

prioritise network management traffic over the rest of their traffic. Such
traffic management practices should be considered as reasonable,
providing they are transparent Indeed, these practices are aimed at
properly configuring and securing the network and its equipment by

efficiently balancing load. eg by reacting as fast as possible in case of
congestion, failures, outages, etc.)

H A definition of traffic management measures can be found on page 18 of the BEREC 2011 Net
Nemrality QoS Framework (30R (11) 53)

 0

Similar situations in terms of similar technical QoS requirements should
receive similar treatment
Different situations in terms of objectively different technical QoS
requirements can be treated in different ways if such treatment is
objectively justified;
In particular. the mere fact that network traffic is encrypted should not be
deemed by NRAs to be an objective justification for different treatment by
ISPs.

58. When considering whether a traffic management measure is proportionate,
NRAs should consider the following:

There has to be a legitimate aim for this measure. as specified in the first
sentence of Recital 9, namely contributing to an efficient use of network
resources and to an optimisation of overall transmission quality;
The traffic management measure has to be suitable to achieve the aim
(with a requirement of evidence to show it will have that effect. and that it is
not manifestly inappropriate);
The traffic management measure has to be necessary to achieve the aim;
There is not a less interfering and equally effective alternative way of

achieving this aim (eg. equal treatment without categories of traffic) with
the available network resources:
The traffic management measure has to be appropriate, eg to balance the
competing requiremens of different traffic categories or competing
interests of different groups.

59. In assessing whether a traffic management measure is reasonable, NRAs
should assess the justification put forward by the ISP. In order to be considered
to be reasonable, a traffic management measure has to be based on objectively
different technical QoS requirements of specific categories of traffic. Examples
for technical QoS requirements are latency. jitter, packet loss, and bandwidth
60. Traffic categories should typically be defined based on QoS requirements,
whereby a traffic category will contain a flow of packets from applications with
equal (similar) requirements Therefore. if lSPs implement different technical
QoS requirements of specific categories of traffic this should be done objectively
by basing them on the characteristics of the applications transmitting the
packets, For example. such a category may consist of real-time applications
requiring a short time delay between sender and receiver,‘5

15 IETF. RFC 7657, Differentiated Services and Real-Time Communication

 61. Furthermore, as explained in Recital 9. lSPs' traffic management measures are
“responding to" the QoS requirements of the categories of traffic in order to
optimise the overall transmission quality and enhance the user-experience. In
order to identify categories of traffic. the ISP relies on the information provided
by the application when packets are sent into the network, (See also paragraph
Conversely, traffic management measures that monitor aspects other than the
specific content. i.e, the generic content. should be deemed to be allowed.
Monitoring techniques used by ISPs which rely on the information contained in
the IF’ packet header. and transport layer protocol header (e.g. TCP) may be
deemed as generic content. as opposed to the specific content provided by endusers themselves (such as text. pictures and video). regarding which information
can legitimately be considered by lSPs). Encrypted traffic should not be treated
less favourably by reason of its encryption.

62. When NRAs consider network-internal mechanisms of ISPs which assist
endpoint-based congestion control (see paragraph Endpoint‘based congestion
contrcl11 (a typical example is Transmission Control Protocol (TCP) congestion
control) does not contravene Article 3(3) first subparagraph since, by definition,
it takes place within terminal equipment and terminal equipment is not covered
by the Regulationt12 NRAs should consider network-internal mechanisms of
ISPs which assist endpoint-based congestion control13 to be in line with equal
treatment. and therefore permissible, as long as these mechanisms are agnostic
to the applications running in the endpoints and a circumvention of the
Regulation does not take place.) in the context of Article 3(3) second
subparagraph the queue management of the different traffic categories” should
be assessed under the same criteria as described in general for Article 3(3)
second subparagraph.

63‘ Based on this, reasonable traffic rmnagement may be applied to difl‘erentiate
between objectively different 'categories of traffic'. for example by reference to
an application layer protocol (such as SMTP, HTTP or SIP) or generic
application types (such as file sharing. VolP or instant messaging), only in so far

as:
-

that application layer protocol or generic appliwtion type are linked to
objectively different technical QoS requirements;

0

applications with equivalent QoS requirements are handled agnostically in
the same traffic category;

16 See section 2.1 ‘AOM and Multiple Queues' in IETF RFC 7567

 -

justifications are specific to the objectives that are pursued by
implementing traffic management measures based on different categories
oftraffic.

64. ISPs may prioritise network management traffic over the rest of their traffic.
Such traffic management practices should be considered as reasonable.
providing they are transparent. indeed. these practices are aimed at properly
configuring and securing the network and its equipment by efficiently balancing

load, e.g. by reacting as fast as possible in case of congestion, failures,
outages. etc.

‘Elll

l

'l

—!

l'

.

65. In the event that traffic management measures are based on commercial
grounds. the traffic management measure is not reasonable An obvious
example of this could be where an ISP charges for usage of different traffic
categories. However, NRAs do not need to prove that a traffic management
measure is based on commercial grounds; it is sufficient to establish that the
traffic management measure is not based on objectively different technical QoS
requirements.

66. In assessing traffic management measures, NRAs should ensure that such
measures do not monitor the specific content (i.e. transport layer protocol
payload).
67. Conversely, traffic management measures that monitor aspects other than the
specific content. i.e. the generic content. should be deemed to be allowed.
Monitoring techniques used by ISPs which rely on the information contained in
the IP packet header. and transport layer protocol header (e.g. TCP) may be
deemed as generic content. as opposed to the specific content provided by endusers themselves (such as text. pictures and video).

.5! ll

ll

'l'

H

ft

.

68. In assessing traffic management measures, NRAs should take into account that
such measures shall not be maintained longer than necessary.

69. BEREC understands this term as relating to the proportionality of reasonable
traffic management measures in terms of duration, in parallel to the explicit
precondition ‘shall be proportionate’ which relates to their proportionality in
terms of scope (type and proportion of traffic affected. impact on the rest of
traffic. equal treatment of comparable situations etc).

70. This does not prevent, per se. a trigger function to be implemented and in place
(but with the traffic management measure not yet effective) on an ongoing basis
inasmuch as the traffic management measure only becomes effective in times of
necessity. Necessity can materialise several times, or even regularly. over a

given period of time. However. where traffic management measures are
permanent or recurring. their necessity might be questionable and NRAs should.
in such scenarios. consider whether the traffic management measures can still
be qualified as reasonable within the meaning of Article 3(3) second
subparagraph.

 :H

.5

.

it

71. Article 3(3) third subparagraph clarifies that. under Article 3(3) second
subparagraph. inter alia the following traffic management measures are

prohibited: blocking, slowing down. alteration. restriction, interference with,
degradation, and discrimination between specific content, applications or
services, or specific categories thereof.

E"'l

..

.

72. BEREC understands that ‘categories of traffic" should be clearly distinguished
from specialised services. Article 3(5) clarifies that specialised services may be
provided for optimisation reasons in order to meet requirements for a specific
level of quality. On the other hand. any use of 'mtegories of traffic” under Article
3(3) second subparagraph is permitted for the optimisation of the overall
transmission quality (ref, Recital 9).
Article 3(3) third subparagraph

Providers of internet access services shall not engage in tramc management measures going
beyond those set out in the second subparagraph, and in particular shall not block. slow
down, alter, restrict, interfere with, degrade or discriminate between specific content,
applications or services, or specific categories thereof, except as necessary, and only for as
long as necessary, in order to:
MIL“
Any trafl’rc maganem practices which go beyond such rensomble trafl'ic mmgancnt means-es. try blocking.
slowing down. aiming. restrict'ng. htdcing will. degad‘ng or discriminating betwem specific content
mpliclimx or auvices, a' specific «again of cmmt. wplicaions or saviour. should be prohibited. subject
to thcjunified aid defined exceptions laid down i: this Regiluinn 11mm ercepu'ons should be subject to strict
inapm‘iun lid to propmionality sequiremuu. Specific coma“. mplicalions and mites. as well as specific
categories thereof. should be protected becuse ofthe negative input! on aid-we choice and innwaion of
blocking. or of otha restrictive measures not falling within the justified arceptims. Rules sga‘nst altering
consent. applications or services refer to a modification of the come“ of the commnicaion. Int do not but
non— discrimimtory data convression tochnicpes which reduce the size of a data file withom my modification
of the consent. Such compression enables a more efl'icius use of scarce reamed Ild serves the aid-med
irla’ests by reducing dun whlmes. increasing speed md entrancing the expu’ience of using the cmmL
mpliclims a savicea curtailed

mm
'l‘nfl'lc Ill-1w! rrmres thl go beymd such reasomble tnfl'rc Immganait meanuel may only be
wplied as necessty ltd for as long I! necesst to comply with the tire justified exceptions laid down in this
Regulaion.

73. Article 3(3). third subparagraph contains two aspects:
0

a prohibition for ISPs to apply traffic management measures going beyond
reasonable traffic management measures; as well as

-

an exhaustive list of three exceptions in which traffic managements
measures that go beyond such reasonable traffic management are
permissible.

74. In order to safeguard the open Internet. Article 3(3) third subparagraph
describes traffic management practices that are prohibited. unless under
specific exception. These are practices that. inter alia. are banned in that regard.
and can be described by these seven basic principles which should be used by
NRAs when assessing ISPs' practices:

0

no blocking,

 no slowing down.
no alteration.
no restriction.
no interference with.
no degradation and
no discrimination

between specific content. applications or services. or specific categories thereof.
This is a non-exhaustive list of traffic management measures that are prohibited.
and any other measure going beyond reasonable traffic management is also
prohibited Practices not complying with the seven basic principles, or that
otherwise go beyond reasonable tratfic management, may be used by ISPs only
based on the three specific exceptions elaborated below under Article 3(3)
letters (a). (b) and (c).

75c By way of example, , ISPs should not block, slow down. alter, restrict. interfere
with. degrade or discriminate advertising when providing an IAS. unless the
conditions of the exceptions a). b) or c) are met in a specific case. In contrast to

network-internal blocking put in place by the ISP. terminal equipment-based
restrictions put in place by the end-user are not targeted by the Regulation
76. The three exceptions set out in Article 3(3) third subparagraph have as common
preconditions that the traffic management measure has to be necessary for the
achievement of the respective exception ('except as neoessary') and that it may

be applied 'only for as long as necessary'. These requirements follow from the
principle of proportionality '7 Moreover. as exceptions. they should be interpreted
in a strict manner.“
77. The prohibition of monitoring of specific content does not apply to traffic
management going beyond reasonable fiaffic management (i.e, traltic
management complying with the exceptions in letters (a). (b). or (c)). It should
be noted that. according to Article 3(4). any processing of personal data has to
be carried out in line with Directive 95/46/EC and Directive 2002/58/EC.
17 See recital 11

18 See recital 11

 Article 3(3) letter (a)
(a) comply with Union legislative acts, or national legislation that complies with Union law,
to which the provider of intemet access services is subject, or with measures that comply
with Union law giving efi‘ect to such Union legislative acts or rational legislation, including
with orders . courts or '
mm
Fist. {minions my line in which provider of him ccceu ravicel le subject to Union legislative acts. or

national legislnion tha counties with Union law (for example. related to the Irrwtiilneu of curtail. applications
or Iervicel. or to pihlic safety). including crimiml law. requiring. {or armpit. blocking of specific carted.
applicuiom or service. In addition. amnion: mly rice in which those provides are subject to measures that
cmly with Union llw. irwlcrncrling a' wplying Union legirhtive act: u' nuioml legillaion. such as
measures of generll mplicuien. court orders. decision: of public uhorities vested with relevm powers. or
other m curring canplimce with such Unim legisltive acts a national legislaim (for example.
obligation: to comply with com order: or «den by public minoritie- remriing to block int-Mb] content) The
requirement to calmly with Union law relates. irlcr alia. to the cmlimce w'lh the requirement of the Chmu
of Fluid-ham] Rights of the Ell'opem Union (‘the Chuter') 'li relnion to limitations on the arertise of
find-natal rim ltd freedoms. As provided "It Directive 2002/21/50 ofthe Etropem Puiilnent lid ofthe
Comcil (I )Jnymecsurerliabletoremict lhwefmdamalulrigtuorfi'eedorru meontytobeinpoced ifthey
are nproprile. proportionate md neceuary within a dunoemic society. aid if their irmlemmim is subject

to aderpue procedinl Iafegua‘dn in conformity with the Europem Converlion for the Protection of Himm
Rig": ltd Fmd-ncntal Freedoms. including in provision: on efl‘ective judicial protectim ltd due process,

78. If an ISP applies traffic management measures which cannot be regarded as
reasonable, NRAs should assess whether an ISP does so because it has to do

so for legal reasons, namely to comply with the legislation or measures by public
authorities specified in that exception.

Article 3(3) letter (b)
(b) preserve the integrity and security of the network, of services provided via that network,
and of the terminal equipment of end-users;
mum
Second. tnfi’ic magunait measure: goirc beyond arch rcuoruble traffic mmngunait measures might be
neceuly to protect the irleg'ity md reality of the nawuk. for Granule by preventiru cybc-attacks thl occur
though the spread ofmalicious mfiwre or idaitity then of aid-uses that occurs as n recul ofopywe

79‘ Typical attacks and threats that will trigger integrity and security measures
include:
o

flooding network components or terminal equipment with traffic to
destabilise them (e.g. Denial of Service attack);

-

spoofing IP addresses in order to mimic network devices or allow for
unauthorised communication;

-

hacking attacks against network components or terminal equipment;

0

distribution of malicious software, viruses etc,

80. Conducting traffic management measures in order to preserve integrity and
security of the network could basically consist of restricting connectivity or
blocking of traffic to and from specific endpoints. Typical examples of such traffic
management measures include:

o

blocking of IP addresses; or ranges of them, because they are well-known
sources of attacks;

 -

blocking of IP addresses from which an actual athek is originating;

o

blocking of IP addresses/MS showing suspicious behaviour (e.g.
unauthorised communication with network components. address
SPOOfiNQ):

o

blocking of IP addresses where there are clear indications that they are
part of a bot network;

-

blocking of specific port numbers mic]: mustrt‘gt: a threat to security and

81. NRAs should consider that. in order to identify attacks and activate security
measures, the use of security monitoring systems by lSPs is often justified. In
such cases. the monitoring of traffic to detect security threats. such as those
listed in paragraph Conducting traffic management measures in order to
preserve integrity and security of the network could basically consist of

restricting connectivity or blocking of traffic to and from specific endpoints.
Typical examples of such traffic management measures include:) may be

implemented in the background. while the actual traffic management measure
preserving integrity and security is triggered only when security attacks are
detected. Therefore. the precondition ‘only for as long as necessary does not
preclude implementation of such monitoring of the integrity and security of the

network.
82. Besides monitoring the integrity and security of the network. possible security
threats may also be identified on the basis of reports/complaints from end-users
or blocking lists from recognised security organisations.
83. This exception could be used as a basis for circumvention of the Regulation
because security is a broad concept NRAs should therefore carefully assess
whether the requirements of this exception are met and to request that lSPs
provide adequate justifications when necessary.

Article 3(3) letter (c)

(c) prevent impending network congestion and mitigate the efl‘ects of exceptional or
temporary network congestion, provided than equivalent categories of trailic are treated
equally
3mm:
Third. mum going beyond such reasonable traffic m-ugemeri measure: migll alw be neceuu'y to prevclt

invading nawork congenial. thu ir. lilmtions when tangential is about to misinliu. and to miigue the
efl‘ecu ofnctwuk carnation. whee such congestion occur! only tarportily or it excqilioml cicumtmcel.
The principle of proportionality require! that traflic mangemmt mean-er bued on that eruption m
equivalcm cacgeriec of traffic «pally. Tcmponry congestion should be understood as referring to specific
situations ofrhort mnfioerhema ruddcn increase hthenunbu'ofruen in ndd‘liontotheregull’ucm. on
mddai hereon in dcrrmd for specific content. applicaimr or rervicel. my overflow the mud-ion cmacity
of some elemmu ofthe network I'ld mite the rest ofthe network len reactive. Tcmpa‘uy congestion mifiit
occur ewecillly in mobile networks. which are mbject tn mire variable auditions. such ar physicll
obrtmctionr. lower indoor covclge. or a vtiable nimbo' of naive use! wih changing location While i may
he predicldile tlm such temmnry cmenim migll occur fran time totime I main pains in the nawu‘k —
wch rm icmuberewded uexceptimal -'l migit not recurcodlm orfcuuch extendveperiods than
equity exp-trim would be ecatomically justified Etceptional congestion rhould be undentood u referring
to mmfiuable lid unavoidable situations of «ligation. both "It mobile and fixed limb. Possible cues of
thoie “nations hclude a teetnicnl faihre rush as a device allege the to broker cable! or othe’ 'nfrutrurtire

 elunents. uwrpected chases in mining ct‘tnflie ct Inge increases in network tram: due to anagawy or
otha' litulions qud the comol ofpmviden ofirla‘nd access setvicee. Such congenial problems He likely
tobemfiembutmxybememduenotnecesmly d‘shu'tiitration'l‘heneedtoepplytnflic
menu“ measures going beyond the resealable u'Ifl'ic amusement measures in (Ides to pmmt or mitigate
the efl‘ects of [worry rt exceptional network congestion should not give provides ofirlemet anus services
the possibility to cimnwent the gain] prohibition on blodriig. slow'ng down. sltaing. misting. inching
with. deg'oding or discriminling between specific cement. sppliciions or services. or specific categories
timed. Retinal and men Ins-listing netwu'lt congestion which is neiha’ «reptimal nu tenpom'y should
not benefit from llm exception bu should rathe- bc tackled throuui amnion ot‘network capacity.

84. In exceptional cases. and for no longer than necessary. ISPs may engage in
traffic management beyond the limits of Article 3(3) second subparagraph to
manage certain types of network congestion. namely impending network
congestions (which may be prevented) and exceptional or temporary network
congestions (the effects of which may be mitigated). Recital 15 provides detailed
information on identifying situations where exceptional and temporary
congestion occurs, Impending network congestion is defined as situations where

congestion is about to materialise. i.e. it is imminent.

85. Recital 15 focuses on exceptional and temporary network congestion; thus,
actions for preventing impending network congestion only apply to cases of
such congestion.

86. When assessing congestion management exceptions under letter (c). NRAs
should refer to the general criteria of strict interpretation and proportionality set
out in Article 3(3) third subparagraph. Furthermore. NRAs should check that
congestion management is not used to circumvent the ban on blocking.
throttling and discrimination. (ref. Recital 15).

87. Due to the requirement that exceptional traffic management can only be applied
as necessary, and only for as long as necessary. NRAs should consider that in
cases when application-agnostic congestion management (i.e. congestion
management which is not targeting specific applications or categories thereof) is
not sufficient. congestion can be dealt with according to Article 3(3) letter (c).
Furthermore, in such cases equivalent categories of tralfic must be treated
equally, Any throttling action should be limited to the section of the network
where congestion occurs. if feasible.

88. Congestion management can be done on a general basis. independent of
applications.” NRAs should consider whether such types of congestion

t9 IETF. RFC 6057. Camcost's Protocol-Agnostic Congestion Management and IETF. RFC 6789.
Congestion Exposure (Conex) Concepts and Use Cases

 management would be sufficient and equally effective to manage congestion, in
light of the principle of proportionality. For the same reason. NRAs should
consider whether throttling of traffic. as opposed to blocking of traffic. would be
sufficient and equally effective to manage congestion.
89. NRAs should monitor that ISPs properly dimension their network. and take into
account the following:
o

if there is recurrent and more long-lasting network congestion in an ISP's
network. the ISP cannot invoke the exception of congestion management
(ref. Recital 15);

o

application-specific congestion nanagement should not be applied or
accepted as a substitute for more structural solutions. such as expansion
of network capacity

Article 3(4)
Any tramc magement measure may entail processing of personal data only if such
processing is necessary and proportionate to achieve the objectives set out in paragraph 3.
Such prooesing shall be carried out in accordance with Directive 95/46/EC of the
European Parliament and of the Council. Tramc management measures shall also comply
with Directive 2002/58/EC of the European Parliament and of the Council.
90. In the course of traffic management. personal data may be processed. Article
3(4) provides that such measures may only process of personal data if certain

requirements are met. and only under certain conditions.
91. Article 3(3) distinguishes betvreen reasonable traffic management measures
and traffic management measures going beyond reasonable traffic management
measures, Article 3(4) applies to both of these traffic managen‘ent forms ('any
traffic management measure'). Vifith regard to reasonable traffic management
measures, these requirements are further specified by Article 3(3) second
subparagraph which states ‘such measures shall not monitor the specific
content'.

92. The objectives referred to in Article 3(4) are those set out in Article 3(3).

93. The processing of personal data within the course of traffic management is also
subject to the proportionality requirement. NRAs should assess whether the
processing of personal data undertaken by ISPs is necessary and proportionate
to achieve the objectives set out in Article 3(3).

94. NRAs should assess whether the processing of personal data complies with

Union law on data protection.“7
20 Whereas NRAs are rid competent to enforce the Privacy Diredive
(Directive 95l48/EC as amended by Regulation (EC) 188212003

(WWW)
they are in many countries empowered to enforce the ePrivacy Directive
(DirectiveZOOZISUEC as amended by Directive 2006124IEC and Directive 2009/13GIEC

 Article 3(5) first subparagraph
Providers of electronic communications to the public, including poviders of intemet access
services, and providers of content, applications and services shall be free to ofi‘er services
other than intemet access services which are optimised for specific content, applications or
services, or a combination thereof, where the optimisation is necessary in order to meet

There is dermal on the pl! el‘providar ottoman. Qplicliom mil lei-vices to be able to provide electmnic
cormuniciim «Iv-ice: otha thm intern: access miter. fr! which Ipecific levels of qmlity. th: I: not
mixed by inemet access services. ac neceuIy. Such specific level: of entity are. for imtmcc. rewind by
some ravices ruponding to a public htaect or by sane new machirIe-to-machine cormuricdions mica.
Provider of electronic continuation: to the public. 'lrchulirg provider of irlanet access wiricel. Ild
provider of coma“. applications ltd raviccr thou“ tlrcrel'ore be fi'ce to cite ravicer which are not inane!
accen services md which He optimised for specific council. unification: tr cervical. or a combinatim thu'eofl
where the oplirniruion is needs-y ii order to med the remarried: of the email. Ipplicuionl or mice: for
a specific level of mality. Nnional regrllory wthon'tiel should verify whether and to wha extem such
optimimion is objectively neceuIy to armreone crmae specific and key {mm ofthe cement. applicliam
or mice! ltd to cable a twinkling qulity mil-lice to be givur to aid-wen. mher tlun linply gutting
generfl priority over ccmplablc cantenL mplicaticm a service: available via the brunet accent rcrvice lid
thereby cimlnvurting the provisions regmfing tnfl'ic rnmagcrnmt measures mplicable to the imam access
MICE.

95. Beyond the delivery of a relatively high quality appliwtion through the IAS. there

can be demand for a category of electronic communication services that need to
be carried at a specific level of quality that cannot be assured by the standard
best effort delivery,
96. Such services can be ottered by providers of electronic communications to the
public (PECPs), including providers of internet access services (lSPs). and
providers of content, applications and services (CAPS).
97. These providers are free to offer services referred to in Article 3(5). which
BEREC refers to as specialised services, only When various requirements are
met. Article 3(5) provides the safeguards for the provisioning of specialised

services which are characterised by the following features in Article 3 (5) first
subparagraph:
0

they are services other than IAS services;

0

they are optimised for specific content. applications or services. or a
combination thereof;

0

the optimisation is objectively necessary in order to meet requirements for
a specific level of quality.

98. Their provision is subject to a number of conditions in Article 3(5) second
subparagraph‘ namely that
0

the network capacity is sufficient to provide the specialised service in
addition to any IAS provided;

I

specialised services are not usable or offered as a replacement for IAS;

o

specialised services are not to the detriment of the availability or general
quality of the IAS for end-users.

 99. According to Recital 16. the service shall not be used to circumvent the
provisions regarding traffic management measures applicable to IAS.
100.Al  these safeguards aim to ensure the continued availability and general quality
of best effort IAS.
101.NRAs should “verify" whether the application could be provided over IAS at the
agreed and committed level of quality, and whether the requirements are
plausible in relation to the application, or Wnether they are instead set up in
order to circumvent the provisions regarding traffic management measures
applicable to IAS, which would not be allowed.
_
_
102. nitial y. the requirement of an application is set by the provider of the
specialised service, although requirements may also be inherent to the
application itself. For example. a video application could use standard definition
with a low bitrate or ultra-high definition with high bitrate, which will obviously
have different QoS requirements. A typical example of inherent requirements is
low latency for real-time applications.

103‘When assessing whether the practices used to provide specialised services
comply with Article 3(5) first subparagraph. NRAs should apply the approach set
out in paragraphs NRAs could request from the provider relevant information
about their specialised services. using powers conferred by Article 5(2) In their
responses. the provider should give information about their specialised services,
including what the relevant QoS requirements are. e.g. latency. jitter and packet
loss, including any contractual requirements. Furthermore. the “specific level of
quality‘ should be specified. and it should be demonstrated that this specific

 level of quality cannot be assured over the [AS-Business customers often
request services relating to virtual private networks (VPN). which are also
discussed in paragraph Regarding virtual private networks (VPN) network
services. these are typically provided by the ISP to anyone that wishes to enter
a contract about the provision of such a service. and these would therefore
typically be considered to be publicly available The term ‘private' describes the
use of such a service which is usually limited to endpoints of the business
entering the contract and secured for internal communications. In accordance
with Recital 17. to the extent that VPNs provide access to the internet. they are
not a closed user group and should therefore be considered as publicly
available ECS and are subject to Articles 3(1)—(4). VPNs are further discussed in
paragraph Business customers often request services relating to virtual private
networks (VPN). which are also discussed in paragraph Regarding virtual

private networks (VPN) network services. these are typically provided by the ISP
to anyone that wishes to enter a contract about the provision of such a service.
and these would therefore typically be considered to be publicly available. The
term ‘private‘ describes the use of such a service which is usually limited to

endpoints of the business entering the contract and secured for internal
communications. In accordance with Recital 17. to the extent that VPNs provide

access to the internet. they are not a closed user group and should therefore be
considered as publicly available ECS and are subject to Articles 3(1)-(4). VPNs
are further discussed in paragraph Business customers often request services
relating to virtual private networks (VPN). Miich are also discussed in paragraph
Regarding virtual private networks (VPN) network services. these are typically
provided by the ISP to anyone that wishes to enter a contract about the
provision of such a service. and these would therefore typically be considered to
be publicly available, The term ‘private‘ describes the use of such a service
which is usually limited to endpoints of the business entering the contract and
secured for internal communications. In accordance with Recital 17. to the

extent that VPNs provide access to the internet. they are not a closed user
group and should therefore be considered as publicly available ECS and are
subject to Articles 3(1)-(4). VPNs are further discussed in paragraph Business
customers often request services relating to virtual private networks (VPN).
which are also discussed in paragraph 11 above. The term VPN can be used in
relation to two different types of services:. above. The term VPN an be used in
relation to two different types of services:. above. The term VPN can be used in
relation to two different types of services:. above. The term VPN can be used in
relation to two different types of services).
104.NRAs could request from the provider relevant information about their
specialised services, using powers conferred by Article 5(2). In their responses.
the provider should give information about their specialised services. including
what the relevant QoS requirements are. e.g. latency. jitter and packet loss.
including any contractual requirements. Furthermore. the “specific level of
quality' should be specified. and it should be demonstrated that this specific
level of quality cannot be assured over the IAS.

105. Based on this information. the NRA should assess the requirements mentioned
in Article 3(5) first subparagraph,

 106.lf assurance of a specific level of quality is objectively necessary this cannot be
provided by simply granting general priority over comparable content." It is

understood that specialised services are offered through a connection that is
logically separated from the IAS to assure these levels of quality. The
connection is characterised by an extensive use of traffic management in order
to ensure adequate service characteristics and strict admission control
107.NRAs should verify whether, and to what extent, optimised delivery is objectively
necessary to ensure one or more specific and key features of the applications.
and to enable a corresponding quality assurance to be given to end-users. To do
this, the NRA should assess whether an electronic communication service. other
than IAS, requires a level of quality that cannot be assured over an IAS. If not,
these electronic communication services are likely to circumvent the provisions

of the Regulation and are therefore not allowed,
108.The internet and the nature of IAS will evolve over time. A service that is
deemed to be a specialised service today may not necessarily qualify as a
specialised service in the future due to the fact that the optimisation of the
service may not be required. as the general standard of IAS may have
improved. On the other hand, additional services might emerge that need to be
optimised. even as the standard of IAS improves. Given that we do not know
what specialised services may emerge in the future. NRAs should assess
whether a service qualifies as a specialised service on a wse-by-case basis.

109.Typical examples of specialised services provided to end-users are VoLTE and
linear broadcasting IPTV services with specific QoS requirements, subject to
them meeting the requirements of the Regulation, in particular Article 3(5) first
subparagraph. Under the same preconditions. other examples would include
real—time health services (eg. remote surgery) or ‘some services responding to
a public interest or by some new machine-to—machine communications services'
(Recital 16).
110.005 might be especially important to corporate customers and these customers

might be in need of specialised services which — as they are addressing
businesses — are often referred to as "business services". Such "business
services" cover a wide array of services and have to be assessed on a case-bycase basis.

As explained in Recital 16, NRAs 'shculd verify whether and to what extent such optimisation is
objectively necessary to ensure one or more specific and key featuas of the cornea, applications or
seNices and to enable a corresponding quality assurance to be given to end-users. rather than simply
granting general priority over comparable content. applications or services available via the internet
access service and thereby circumventing the provisions regarding traffic manager-nerd measures
applicable to the intemet access sem'ces'

 111. Business customers often request services relating to virtual private networks (VPN),
which are also discussed in paragraph Regarding virtual private networks (VPN)
network services. these are typically provided by the ISP to anyone that wishes to
enter a contract about the provision of such a service. and these would therefore
typically be considered to be publicly available. The term ‘private' describes the use
of such a service which is usually limited to endpoints of the business entering the
contract and secured for internal communications. In accordance with Recital 17, to
the extent that VPNs provide access to the internet. they are not a closed user group
and should therefore be considered as publicly available ECS and are subject to
Articles 3(1)-(4). VPNs are further discussed in paragraph Business customers often
request services relating to virtual private networks (VPN). which are also discussed
in paragraph Regarding virtual private networks (VPN) network services. these are
typically provided by the ISP to anyone that wishes to enter a contract about the
provision of such a service. and these would therefore typically be considered to be
publicly available. The term ‘private' describes the use of such a service which is
usually limited to endpoints of the business entering the contract and secured for
internal communications, In accordance with Recital 17. to the extent that VPNs
provide access to the internet, they are not a closed user group and should therefore
be considered as publicly available ECS and are subject to Articles 3(1)-(4). VPNs
are further discussed in paragraph Business customers often request services
relating to virtual private networks (VPN). which are also discussed in paragraph
Regarding virtual private networks (VPN) network services. these are typically
provided by the ISP to anyone that wishes to enter a contract about the provision of
such a service. and these would therefore typically be considered to be publicly
available. The term ‘private‘ describes the use of such a service which is usually
limited to endpoints of the business entering the contract and secured for internal
communications. In accordance with Recital 17. to the extent that VPNs provide
access to the internet. they are not a closed user group and should therefore be

considered as publicly available ECS and are subject to Articles 3(1)»(4). VPNs are
further discussed in paragraph Business customers often request services relating to
virtual private networks (VPN), which are also discussed in paragraph 11 above, The
term VPN can be used in relation to two different types of services; above. The term
VPN can be used in relation to two different types of services; above. The term VPN
can be used in relation to two different types of services:. above. The term VPN can
be used in relation to two different types of services:
-

u
I.)

-

“VPN application": A VPN application is typically used in the context of
teleworking. A computer (eg an employee's laptop) uses the public
internet to connect to corporate services. In order to protect the information
transferred. a VPN application on the client encrypts all traffic and typically
sends all traffic to a VPN concentrator located within the corporate
network. Both ends — the client and the concentrator - use an IAS. and this
would therefore not be a specialised service,
“VPN network service": A VPN network service is typically used to provide
a private connection between a number of sites (eg. different locations of
a corporation). Such VPN services are typically implemented over common
infrastructure with IAS (e.g. based on MPLS”). Such services are provided

 in parallel with IAS. As long as the services comply with the requirements
set out in the Regulation, they are considered to be specialised services.

Article 3(5) second subparagraph
Providers of electronic communications to the public, including providers of intemet access
services, may offer or facilitate such services only if the network capacity is sufficient to
provide them in addition to any intemet access services provided Such services shall not be
usable or ofl‘ered as a replacement for internet access services, and shall not be to the

detriment of the availabili
M111

or eneral mli

of internet access services for end-15ers.

In outs to avoid the provision of such olhu' savices havirg a negative input on the availability or small
quality of intemet access mices for end-users. suficicrt cmacity needs to be enu'ed. Provides of electronic

cormunicaions to the public. ircludhg provides of intend access services. should. therefore. ofl'a such otha'
savices. (I conclude corresponding marten wih provides of corded. applications or services facilitating

mch outer services. only if the network capacity is strfl'icimt for their provision is addition to my incl-net
access services provided. The provisims of this Regulaion on the "fey-ding of open internet access should
not be circunvented by mems ofothcr services usable or ofi‘ered as a replacemcm for irdanet access sis-vices.
However. the mere fact Ihu corporate services such as virtual privue networks rnigla also give access to the
into-net should not renal! in them being considered to be a replacement ofthe interim access services. provided
that the provision of such access to the ittand by a provider of electronic cmmmications to the ptdslic
empties with Article 3(1) to (4) ofthis Regulation. aid diaefa'e carrot be considered to be a circurnverlicn of
those provisions. The provision of such Devices otha' than inertia access advices should not be to the
detrimen of the availability and genes! malty of iriana access crevices for aid-uses. In mobile naworks.
trafl'rc volt-hes ‘n a given radio cell we more difiicult to anticipate due to the varying raunber ofactive end-

ures. lid for this reason at impact on the (pally of irscmet access services fir endures miyrt occur in
iud‘oreseeable cimunstmces. In mobile networks. the actual qmlity of mm access services fa end-uses
should not be deemed to incis- a detrincm where the awe negaive inmact of services other than him
accus service: is unavoidable. minimal ltd limited to I shut finial. Ndioml regulxu'y nihor'lies shalld
chm thu provides of electronic communications to the public comply with that requirement. In this respect.
unions] regularity mthorities should assess the input on the availability md salsa! quality of'lrhemd accsa
services by malysim. inter alia. wally of service pmeters (such as latency. jitter. packet loss). the levels md
efl‘ects ofcongeuion in the ndwodc utml versus advertised speak. the pa'formmce of'ntand access mice:
as comp-ed with services othu that 'artemd access wvices. md quality as perceived by aid-users.

112. Specialised services shall only be offered when the network capacity is sufficient
such that the MS is not degraded (eg. due to increased latency orjitter or lack
of bandwidth) by the addition of specialised services Both in the short and in the
long term, specialised services shall not lead to a deterioration of the general
IAS quality for end-users. This can. for example, be achieved by additional
investments in infrastructure which allow for additional capacity so that there is
no negative impact on IAS quality.
113. In a network with limited capacity, IAS and specialised services could compete
for overall network resources. In order to safeguard the availability of general
quality of IAS. the Regulation does not allow specialised services if the network
capacity is not sufficient to provide them in addition to any IAS provided,
Multiprotocol Label Switch'ng

 because this would lead to degradation of the IAS and thereby circumvent the
Regulation. It is the general quality of the IAS which is protected from
degradation by the Regulation, rather than specialised services.
114. This implies that, in order to ensure the quality of the specialised services, ISPs
would have to ensure sufficient network capacity for both any IAS otters
provided over the infrastructure and for specialised services. If not, provision of
the specialised services would not be allowed under the Regulation.

115. NRAs could request information from lSPs regarding how sufficient capacity is
ensured, and at which scale the service is offered (eg. networks, coverage and
end-users). NRAs could then assess how ISPs have estimated the additional
capacity required for their specialised services and how they have ensured that
network elements and connections have sufficient capacity available to provide
specialised services in addition to any IAS provided.
116.NRAs should assess whether or not there is sufficient capacity for IAS when
specialised services are provided, for example, by performing measurements of
IAS.” Methodologies for such measurements have been relatively well

developed during BEREC‘s Net Neutrality QoS workstreams in recent years and
will continue to be improved.

.

E

.

..

.

Elli

117.Specialised services are not permissible if they are to the detriment of the
availability and general quality of the IAS. There is a correlation between the
performance of the IAS offer (i.e. its availability and general quality) and whether
there is sufficient capacity to provide specialised services in addition to IAS IAS
quality measurements could be performed with and without specialised services,
both in the short term (measuring with specialised services on and off
respectively) and in the long term (which would include measurements before
the specialised services are introduced in the market as well as after) As Recital
17 clarifies, NRAs should ‘assess the impact on the availability and general
quality of IAS by analysing, inter alia, 008 parameters (such as latency, jitter
and packet loss), the levels and effects of congestion in the network, actual
versus advertised speeds and the performance of IAS as compared with
services other than IAS'.
118,While IAS and specialised services directly compete for the dedicated part of a
user‘s capacity the user may determine hirrself how to use it. Therefore, NRAs
should not consider this an infringement of Article 3(5) second subparagraph, as
long as the end-user is informed pursuant to Article 4(1)(c) of the likely or

See paragraphs IAS performance assessment can be perforated at the user or market levclz-Markct-lcvel
assessrnall data ran also be used for:

 possible impact on his IAS and can still obtain a minimum speed" for any IAS
subscribed to in parallel. NRAs should not consider it to be to the detriment of
the general quality of MS—MenlASMen activation of the specialised service
by the individual end-user only affects his own IAS. However, detrimental effects
should not occur in those parts of the network where capacity is shared between
different end-users.
119. Furthermore, as stated by Recital 17, in mobile networks, where the number of
active users in a given cell, and consequently traffic volumes, are more difficult
to anticipate than in fixed networks. the general quality of IAS for end-users
should not be deemed to incur a detriment where the aggregate negative impact
of specialised services is unavoidable, minimal and limited to a short duration.
By contrast, such unforeseeable circumstances related to the number of users

and traffic volumes do normally not occur in fixed networks.
120rNRAs should assess that the provision of specialised services does not reduce
general IAS quality by lowering measured download or upload speeds or, for
example. by increasing delay. delay variation or packet loss. Normal small-scale
temporal network fluctuation should not be considered to be to the detriment of
the general quality. Network outages and other temporary problems caused by
network faults, for example. should be treated separately.
121.NRAs should intervene if persistent decreases in performance are detected for

MS This could be detected if the measured performance is consistently above
(for metrics such as latency, jitter or packet loss) or below (for metrics such as
speed) a previously detected average level for a relatively long period of time
such as hours or days), or if the difference between measurement results before
and after the specialised service is introduced is statistically significant. in the
case of short—term assessments, the difference between measurement results
with and without the specialised service should be assessed similarly,

‘Mfl

H

[E

l

l

[E

[33'

122ilt is of utmost importance that the provisions regarding specialised services do
not serve as a potential circunwention of the Regulation. Therefore, NRAs
should assess whether a specialised service is a potential substitute for the IAS,
and if the capacity needed for their provision is to the detriment to the capacity
available for IAS.
123.ln deciding whether a specialised service is considered as a replacement for an
IAS, one important aspect that NRAs should assess is whether the service is
actually providing access to the internet but in a restricted way. at a higher

As discussed in Article 4(1)(d)

 quality, or with differentiated traffic management. If so, this would be considered
a circumvention of the Regulation.

Adjglfl
Transparency measures for ensuring open internet access

Article 4(1)
Providers of intemet access services shall ensure that any contract which includes intemet
access services specifies at least the following:
/ [yum-s rm

(I):

rm

rd;

rm

/

Providers of intemet access services shall publish the infomtation referred to in the first
subparagmph.
mm
The provision on rafegutd‘ng of open 'ntemet access should be complemented by effective aid-trees
provisions which adieu issues pmicularty l'srked to interns access revises and enable end-uses to nuke
informed choices Those provisions should qrply in sdd'lion to the uplicable provisions of Diective
ZOOTJZZ/EC of the Erxopesn Puliameit and ofthe Council (I) ltd Membu' States should have the possibility to
ma'ntain or adopt more fu- reaching measures. Providers ofirlanet access services should inform end-uses "It
s cleu' mmner how trafl'rc moaned practices deployed migtt have at impact on the quality of intranet
access services. urd-usus‘ privacy and the protectim ot‘pmoml dds as well as about the possible invact of
mices «her that irlunet access mites to which they “scribe. on the mality aid availdtility of their
respective ittanet access services In order to mower aid-uses in such situations providers ot'irlemet Itceu
mic-es should thu'efore inform aid-rm in the corinct of the speed which they re able realistically to
deliver. The namslly available spud is understood to be the spud that at end-user could orpect to receive
most of the line when stealing the revise Provide! 01' intend access ravices should also inform coltsumas
of available remedies in accordarce wih mtioml lsw in the evurt of non-compliance of paform-rce. Arty
siyrifrc-rt and continuous or regrlarly recto-rite diflaatce. whee established by a monitoring mechmism
certified by the national regullory authority. betweer the actual paformmce ofthe service aid the paforrnmce
indicated in the contact should be deemed to constitue non- conformity of perfmnmce for the puposes of
determining the remedies available to the 9m in accordmce with naioml law. The methodology should
be established in the yridelines oftlre Body oi‘Etu-opem Regrhtors for Electronic Cernmnicstions (BEREC)
and reviewed and updated as neceeeay to reflect techtology ltd infi'astruml’e evohrtr'ort Natioml regullta'y
arthorities should enforce caml‘nnce with the rules it this Regulaien on trmrpa’enq measures for cursing
opal intanet access.

124.NRAs should ensure that ISPs include relevant information referred to in Article
4(1) points (a) to (e) in a clear, comprehensible and comprehensive rmnner in in
contracts that include IAS. and publish that information. for example on an ISP's
website.

125.NRAs should also note that the transparency requirements laid down in Articles
4(1) and 4(2) are in addition to the measures provided in directive 2002/22/EC
(the Universal Service Directive), particularly in Chapter IV thereof. National law
may also lay down additional monitoring. information and transparency
requirements. including those concerning the content, form and manner of the
information to be published.
126.NRAs should look to ensure that ISPs adhere to certain good practices
regarding the information:
0

should be easily accessible and identifiable for what it is;

0

should be accurate and up to date;

 0

should be meaningful to end-users. i.e. relevant unambiguous and
presented in a useful manner;

0

should not create an incorrect perception of the service provided it.) the
end-user;

0

should be comparable at least between different offers, but preferably also
between difierent lSPs. so that end-users are able to compare the offers

(including the contractual terms used by different ISPs) and lSPs in such a
way that it can show differences and similarities.
127.NRAs should ensure that ISPs include in the contract and publish the
information elements below, preferably presented in two parts (levels of detail)”:

0

The first part should provide high-level (general) information. The
information about the IAS provided should include, for example. an
explanation of speeds. examples of popular applications that can be used
with a sufficient quality, and an explanation of how such applications are
influenced by the limitations of the provided IAS. This part should include
reference to the second part where the information required by Article 4(1)
of the Regulation is provided in more detail.

-

The second part would consist of more detailed technical parameters and
their values and other relevant information defined in Article 4(1) of the
Regulation and in these Guidelines.

128. Examples of how information could be disclosed in a transparent way can be
found in BEREC‘s 2011 Net Neutrality Transparency Guidelines”.

129.Contract terms that would inappropriately exclude or limit the exercise of the
legal rights of the end-user vis-a-vis the ISP in the event of total or partial non25

NRAs should note that ISPs are also under an obligation to provide information to consumers before
being bound by the contract under other EU instmments: the Consumer Rights Directive (hmfleur;

W)
the Unfair Commercial Practices Directive

BEREC Guidelines on TransparencyIn the scope of Net Neutraity. 80R (11) 67)

 performance or inadequate performance by the ISP of any of the contractual
obligations might be deemed unfair under national legislation, including the
implementation of Directive 93/1 SIEEC on unfair terms in consumer contracts.27
130.Articles 4(1). 4(2) and 4(3) apply to all contracts regardless of the date the
contract is concluded or renewed Article 4(4) applies only to contracts
concluded or renewed from 29 November 2015.
Article 4(1) letter (a)
(3) information on how traffic management measures applied by tint provider could impact
on the quality of the intemet access services, on the privacy of end-users and on the
protection of their personal data;
131.NRAs should ensure that ISPs include in the contract and publish a concise and
comprehensive explanation of traffic management techniques applied in
accordance with the second and third subparagraphs of Article 3(3). including
the following information:
0

how the measures might affect end-user experience in general respect
and with regard to specific appliwtions (e.g. where specific categories of
traffic are treated differently in accordance with Article 3), Practical
examples should be used for this purpose;

0

the circumstances and manner under which traffic management measures
possibly having an impact as foreseen in Article 4(1) letter (a) are

applied”;

See Annex. paragraph 1(b)ol Council Directive 93I13IEEC an unfair termsin consumer contracts.

(WW)
NRAs may or may not be empowered to monitor compliance with said diredive.
28

The Universal Service Directive (Directive 2002/22/EC. Article 20(1)(b) 2rd and 4th 'ndents) may also
require such information to be specified in contracts. Article 20(1)(b) 2nd indent requires that contracts
specify information on conditions limiting access to and/or use of services and applicalions. where
such conditions are permitted under national law in accordance with Community law

 c

any measures applied when managing traffic which use personal data the
types of personal data used, and how ISPs ensure the privacy of endusers and protect their personal data when managing traffic.

132.The information should be concise and comprehensive. The information should
not simply consist of a general condition stating possible impacts of traffic
management techniques that could be applied in accordance with the
Regulation. Information should also include, at least, a description of the
possible irnpacs of traffic management practices which are in place on the IAS.

133. Modifications to contracts are subject to national legislation implementing Article
20(2) of the Universal Service Directive.

Article 4(1) letter (b)
(b) a clear and comprehensible explanation as to how any volume limitation. speed and
other quality of service parameters may in practice have an impact on intemet access
services, and in particular on the use of cement, applications and services;
134. Besides speed, the most important 008 parameters are delay, delay variation
(jitter) and packet loss. These other 008 parameters should be described if they
might, in practice. have an impact on the lAS and use of applications. NRAs

should ensure that ISPs provide information which is effects-based. Users
should be able to understand the implications of these parameters to the usage
of applications and whether certain applications (e.g. interactive speech/video or
4K video streaming) cannot in fact be used due to the long delay or slow speed

of the MS Categories of applications or popular examples of these affected
applications could be provided.
135rRegarding volume limitations, contracts should specify the 'size‘ of the cap (in
quantitative terms). what that means in practice and the consequences of
exceeding it (eg. additional charges, speed restrictions. blocking of all traffic
etc). If the speed will decrease after a data cap has been reached, that should
be nken into account when specifying speeds in contract and publishing the
information, Information and examples could also be provided about what kind
of data usage would lead to a situation where the data cap is reached (e.g.
indicative amount of time using popular applications, such as SD video, HD
video and music streaming)
Article 4(1) letter (c)
(c) a clear and comprehensible explanation of how any services referred to inArticle 3(5) to

which the end-user subscribes might in practice have an impact on the intemet access
senrices provided to that end-user;
136.NRAs should ensure that lSPs include in the contract and publish clear and
comprehensible information about how specialised services included in the enduser‘s subscription might impact the IAS.
Article 4(1) letter (d)
(d) a clear and comprehensible eiqilanation of the minimum, normally available, maximum
and advertised download and upload speed of the intemet access services in the case of
fixed networks, or of the estimated maximum and advertised download and upload speed

 of the intemet access services in the case of mobile networks, and how significant

deviations from the respective advertised download and upload speeds could impact the
exercise of the end-users’ rights laid down in Article 3(1);
137. n order to empower end-users. speed values required by the Article 4(1) letter
(d) should be specified in the contract and published in such a manner that they
can be verified and used to determine any discrepancy between the actual
performance and what has been agreed in contract. Upload and download
speeds should be provided as single numerical values in bits/second (e.g. kbitls
or Mbitls). Speeds should be specified on the basis of the IP packet payload.
and not based on a lower layer protocol.
138‘In order for the contractual speed values to be understandable. contracts should

specify factors that may have an effect on the speed. both within and outside the
ISP‘s control.
139. BEREC understands that the requirement on ISPs to include in the contract and
publish information about advertised speeds does not entail a requirement to
advertise speeds; rather, it is limited to including in the contract and publishing
information about speeds which are advertised by the ISP. The requirement to
specify the advertised speed requires an ISP to explain the advertised speed of

the particular IAS offer included in the contract. if its speed has been advertised.
An ISP may naturally also advertise other IAS offers of higher or lower speeds
that are not included in the contract to which the subscriber is party (whether by
choice or due to unavailability of the service at their location), in accordance with

laws governing marketing.

5

.5.

5

EE'

:1

Minimum speed
140.The minimum speed is the lowest speed that the ISP undertakes to deliver to
the end-user. according to the contract which includes the IAS. In principle, the
actual speed should not be lower than the minimum speed at any time. except in
cases of interruption of the IAS. If the actual speed of an IAS is significantly. and
continuously or regularly. lower than the minimum speed. it would indicate nonconformity of performance regarding the agreed minimum speed.
141.NRAs29 could set requirements on defining minimum speed under Article 5(1),
for example that the minimum speed could be in reasonable proportion to the
maximum speed.

National regulatory authority as referred to in Article 2(9) of the Framework Directive means the body
or bodies charged by national law with any of the regulatory tasks assigned in the framework for
electronic communications

 Maximum speed
142.The maximum speed should be actually achievable by the end-user at least
some of the time (e.g. at least once a day). An ISP is not required to technically
limit the speed to the maximum speed defined in the contract.
143.NRAs could set requirements on defining maximum speeds under Article 5(1),
for example that they are achievable a specified number of times during a
specified period.
Normally available speed
144.The normally available speed is the speed that an end-user could expect to
receive rr‘ost of the time when accessing the service. BEREC considers that the
norrrally available speed has two dimensions: the numerical value of the speed
and the availability (as a percentage) of the speed during a specified period,
such as peak hours or the Mole day.
145.The normally available speed should be available during the specified daily
period. NRAs could set requirements on defining normally available speeds
under Article 5(1). Examples include:

o

specifying that normally available speeds should be available at least during
off-peak hours and 90% of time over peak hours, or 95% over the whole day;

-

requiring that the normally available speed should be in reasonable proportion
to the maximum speed.

146. n order to be meaningful, it should be possible for the end.user to evaluate the
value of the normally available speed vis-a-vis the actual performance of the IAS
on the basis of the information provided.
Advertised speed
147.Advertised speed is the speed an ISP uses in its commercial communications,
including advertising and marketing. in connection with the promotion of IAS
offers. in the event that speeds are included in an ISP‘s marketing of an offer
(see also paragraph BEREC understands that the requirement on ISPs to
include in the contract and publish information about advertised speeds does
not entail a requirement to advertise speeds; rather, it is limited to including in
the contract and publishing information about speeds which are advertised by
the ISP. The requirement to specify the advertised speed requires an ISP to
explain the advertised speed of the particular IAS offer included in the contract.
if its speed has been advertised. An ISP rray naturally also advertise other IAS
offers of higher or lower speeds that are not included in the contract to which the
subscriber is party (whether by choice or due to unavailability of the service at
their location), in accordance with laws governing marketing), the advertised
speed should be specified in the published information and in the contract for
each IAS offer.
148.NRAs could set requirements on defining advertised speeds under Article 5(1).
for example that the advertised speed should not exceed the maximum speed
defined in the contract.

 5

.5.

E

li‘

.

149.Estimated maximum and advertised download and upload speeds should be
described in contracts according to paragraphs The estimated maximum speed
for a mobile IAS should be specified so that the end-user can understand the
realistically achievable maximum speed for their subscription in different
locations in realistic usage conditions. The estimated maximum speed could be
specified separately for different network technologies that affect the maximum
speed available for an end-user. End-users should be able to understand that
they may not be able to reach the maximum speed it their mobile terminal does
not support the speed.-NRAs could set requirements on defining estimated
maximum speeds under Article 5(1), for example that the advertised speed for
an IAS as specified in a contract should not exceed the estimated maximum
speed as defined in the same contract. See also paragraph BEREC
understands that the requirement on ISPs to include in the contract and publish
information about advertised speeds does not entail a requirement to advertise
speeds; rather. it is limited to including in the contract and publishing information
about speeds which are advertised by the lSP. The requirement to specify the
advertised speed requires an ISP to explain the advertised speed of the
particular IAS offer included in the contract, if its speed has been advertised, An
ISP may naturally also advertise other IAS offers of higher or lower speeds that
are not included in the contract to which the subscriber is party (whether by
choice or due to unavailability of the service at their location), in accordance with
laws governing marketing.

Estimated maximum speed
150.The estimated maximum speed for a mobile IAS should be specified so that the
end-user can understand the realistically achievable maximum speed for their
subscription in different locations in realistic usage conditions. The estimated
maximum speed could be specified separately for different network technologies
that affect the maximum speed available for an end-user. End-users should be
able to understand that they may not be able to reach the maximum speed if
their mobile terminal does not support the speed.
151.NRAs could set requirements on defining estimated maximum speeds under
Article 5(1).

152. Estimated maximum download and upload speeds could be made available in a
geographical manner providing mobile IAS coverage maps with
estimated/measured speed values of network coverage in all locations, including
both indoor and outdoor coverage.
Advertised speed
153.The advertised speed for a mobile IAS offer should reflect the speed which the
ISP is realistically able to deliver to end-users. Although the transparency
requirements regarding IAS speed are less detailed for rmbile IAS than for fixed
IAS, the advertised speed should enable end-users to make informed choices,

for example. so they are able to evaluate the value of the advertised speed vis—
a-vis the actual performance of the IAS. Significant factors that limit the speeds
achieved by end-users should be specified.
154.NRAs could set requirements on defining estimated maximum speeds under
Article 5(1), for example that the advertised speed for an IAS as specified in a

 contract should not exceed the estimated maximum speed as defined in the
same contract. See also paragraph BEREC understands that the requirement
on ISPs to include in the contract and publish information about advertised
speeds does not entail a requirement to advertise speeds; rather. it is limited to
including in the contract and publishing information about speeds which are
advertised by the ISP The requirement to specify the advertised speed requires
an ISP to explain the advertised speed of the particular IAS offer included in the
contract. if its speed has been advertised An ISP may naturally also advertise
other IAS offers of higher or lower speeds that are not included in the contract to
which the subscriber is party (whether by choice or due to unavailability of the
service at their location), in accordance with laws governing marketing.
Article 4(1) letter (e)
(e) a clear and comprehensible explanation of the remedies available to the consumer in

accordance with national law in the event of any continuom or regularly ramming
discrepancy between the actual performance of the internet access service regarding speed
or other quality of service parameters and the performance indicated in accordance with
points (a) to (d).
155.Rernedies available to consumers as described in Article 4(1) letter (e) are
defined in national law. Examples of possible remedies for a discrepancy are
price reduction, early termination of the contract. damages. or rectification of the
non-conformity of performance. or a combination thereof. NRAs should ensure
that ISPs provide consumers with information specifying such remedies.

Article 4(2)
Providers of internet access services shall put in place transparent, simple and eflicient
procedures to address complaints of end-users relating to the rights and obligatiors laid
downin Article 3 and paragraph I of this Article.
156.NRAs should ensure that lSPs adhere to certain good practices regarding
procedures for addressing complaints. such as:
o

informing end-users in the contract as well as on their website, in a clear

manner. regarding the procedures put in place. including the usual or
maximum time it takes to handle a complaint;
0

providing a description of how the complaint will be handled. including
what steps the ISP will take to investigate the complaint and how the enduser will be notified of the progress or resolution of the complaint;

0

enabling end-users to easily file a complaint using different means. at least
online (eg. a web-form or email) and at the point of sale. but possibly also
using other means such as the post or telephone;

0

providing a single point of contact for all complaints related to the
provisions set out in Article 3 and Article 4(1). regardless of the topic of the
complaint:

-

enabling an end-user to be able to enquire about the status of their
complaint in the same manner in which the complaint was raised;

0

informing end-users of the result of the complaint in a relatively short time.
nking into account the complexity of the issue;

 -

informing the end-user of the means to settle unresolved disputes
according to national law if the end-user believes a complaint has not been
successfully handled by the ISP (depending upon the cause of the
complaint. the competent authority or authorities under national law may
be the NRA. a court or an alternative dispute resolution entity etc),

Article 4(3)
The requirements laid down in paragraphs 1 and 2 are in addition to those provided for in
Directive 2002/22/EC and slnll not prevent Member States from maintaining or introducing
additioml monitoring, information and transparency requirements, including those

concerning the content, form and manner of the information to be published. Those
requirements shall comply with this Regulation and the relevant provisions of Directives

2002/2 NBC and 2002/22/EC.
157.This provision is aimed at Member States and no guidance to NRAs is required.

Article 4(4)
Any significant discrepancy, continuom or regularly recurring, between the actual
performance of the internet access service regarding speed or other qrrality of service
parameters and the perfomrance indicated by the novider of intemet access services in
accordance with points (a) to (d) of paragraph I shall, where the relevant facts are

established by a monitoring mechanism certified by the national regulatory authority, be
deemed to constitute non-conformity of performance for the purposes of triggering the
remedies available to the consumer in accordance with national law.
This paragraph shall apply only to contracts concluded or renewed Earn 29 November
2015.
158.The relevant facts proving a significant discrepancy may be established by any
monitoring mechanism certified by the NRA, whether operated by the NRA or a
third party. The Regulation does not require Member States or an NRA to
establish or certify a monitoring mechanism The Regulation does not define

how the certification must be done. If the NRA provides a monitoring mechanism
implemented for this purpose it should be considered as a certified monitoring
mechanism according to Article 4(4).
159.lt would help make the rights enshrined in the Regulation more effective if NRAs
were to establish or certify one or more monitoring mechanisms that allow endusers to determine whether there is non-conformity of performance and to
obtain related measurement results for use in proving non-conformity of
performance of their IAS. The use of any certified mechanism should not be
subject to additional costs to the end-user and should be accessible also to

disabled end-users.
160.The methodologies that could be used by certified monitoring mechanisms are
further discussed in the next section on Methodology for monitoring IAS
perfomance. The purpose of this guidance regarding methodologies is to
contribute to the consistent application of the Regulation However, NRAs
should be able to use their existing measurement tools and these Guidelines do
not require NRAs to change them.

 ll

5

.

l

[95

:

161.NRAs should consider 80R (14) 117” when implementing a measurement
methodology. Measurements should mitigate. to the extent possible,
confounding factors which are internal to the user environment. such as existing
crosstraffic and MrelessMireline interface.
162_When implementing measurement methodologies, NRAs should consider
guidance on methodologies developed during BEREC's work on 008 in the
context of Net Neutrality. especially those found in:

0

the 2012 framework for Quality of Service in the scope of Net Neutrality";

-

the 2014 Monitoring quality of Internet access services in the context of

net neutrality BEREC report”;

30

See Chapter 4.8 Cmclusbns and recommendations of 80R (14) 117 Monitoring quality of Intemu
access services in the context of net neutrally'

31

BOR(14)117, I.l ‘
nth-In

‘l

 o

the feasibility study of quality monitoring in the context of net neutrality”;
and

0

the BEREC planned 2016-17 workstream on the Regulatory Assessment

of 008 in the context of Net Neutrality“.
163‘ Following this existing guidance, the speed is calculated by the amount of data
divided by the time period. These speed measurements should be done in both
download and upload directions. Furthermore. speed should be calculated
based on IP packet payload, e.g. using TCP as transport layer protocol.
Measurements should be performed beyond the ISP leg. The details of the
measurement methodology should be made transparent.

35

BOR(15) 207. a i -' .

34

 M
Supervision and enforcement
Article 5(1)
National regulatory authorities shall closely monitor and ensure compliance with Articles 3
and 4, and shall pornote the continued availability of non-discriminatory intemet access
senrices at levels of quality that reflect advances in technology. For those purposes national
regulatory authorities may impose requirements concerning technical characteristics,
minimum quality of service requirements and other appropriate and necessary measures on
one or more providers of electronic cormmrnicatiom to the public, including providers of
internet access services
National regulatory authorities shall publish reports on an amml basis regarding their
- ovide those reports to the Commission and to BEREC.
_
Nuional regullory urthcritiee play It emial role in curling that end-um I'e able to crevice etYectively

the‘r rifles unda’ this Regrluion and thu the rules on the nt‘egutd‘ng d‘opar intana acceu re emptied
with. To thfl aid. naioml regrlflory authorities should have monitorirg md reporting obligations. aid should
ennre thu providers of electronic cannlniclions to the public. 'nclud'ng provider: dintemet access services.
corrply with the: obligations career-rung the safeguarding of open 'ntunet access. Thole irclude the oblig‘ion
to ensure which“ network ear-city for the provision of hid: quality non-dimin‘mta‘y internet access
revise. the germ] quality ofwhich should not her: a detrirnul by reason d'the provirim oflu'vicee ah:
than irianet access laviccl. with a specific level of quality. Naional rcgrlatory annuities should alto have
pm to inpose requirunart: concaning technical chmterilticl. m'n'lnu'n quality of ravine minimum

lid otha' appropriue mean“: on all or individral provider ofelectrcnic cornmmieaiont to the prlrlic ifthir
is neeenary to auure eomlimce with the provirims of this RegrlIion on the safegumling of open irlanet

access or to premt degradation of the gene-cl gratity o! rcvice of internal acceu ravicel for end-men. In
doing no. national regrlaory ulhoritiee should tdre utmost accoum ofrelevmt guidelines tiorn BEREC.

T

I

h

' i n

164.\Mth regard to the duties and powers of NRAs set out in Article 5, there are
three types of NRA actions to monitor and ensure compliance with Articles 3 and
4.

0

Supervision. which encompasses monitoring by the NRA as set out in
Article 5(1). and facilitated by the powers to gather information from lSPs
in Article 5(2). on:
0

Monitoring of restrictions of end-user rights (Article 3(1)

0 Monitoring of contractual conditions and commercial practices (Article

3(2))
0 Monitoring of traffic management (Article 3(3))
0 Monitoring and assessment of IAS performance and impact of
specialised services on the general quality of IAS (Article 3(5) and
Article 4)
0 Monitoring of transparency requirements on ISPs (Article 4);
0

Enforcement, which an include a
measurements as set out in Article 5(1):

variety

of

interventions

and

0

Reporting by NRAs on the findings from their monitoring. as set out in
Article 5(1).

 165.To monitor compliance, NRAs may request that ISPs and end-users provide
relevant information. Information that can be requested from ISPs is discussed
under Article 5(2) and NRAs may collect end-user complaints and ask end-users
to complete surveys and questionnaires.
166‘Further guidance for specific Articles of the Regulation is described in
paragraphs NRAs have the power to collect traffic management information. for
instance by:-As well as being published, the reports should be provided to the
Commission and to BEREC. To enable the Commission and BEREC to more
easily compare the reports, BEREC recommends that NRAs include at least the
following sections in their annual reports. and under Articles 3(2) and 3(5).

ll

,

.

55.

.

167.NRAs have the power to collect traffic management information. for instance by:
evaluating traffic management practices applied by ISPs. including
exceptions (allowed by Article 3(3) third subparagraph);
requesting more comprehensive information from ISPs about implemented
traffic management practices. including:
o a description of. and technical details about affected networks.
applications or services;
0 how they are affected and any other specific differentiation with regards
to the application of the practice (such as if the practice is applied only
for specific time of day. or in a specific area);
0 in the case of exceptional traffic management practices going beyond
those set out in the second subparagraph (Article 3(3)). a detailed
justification of why the practice is applied and the time period for which
it is applied,
requesting records on traffic management measures/practices applied;
requesting information from ISPs in following up on complaints received by
NRAs;

conducting national investigations similar to BEREC's 2012 Traffic
Management Investigation“;
collecting information and complaints received directly from end-users or
other information sources such as news. blogs. forums and other
discussion groups.
35

A View of traffic management and other pradica reaming in restridions to the open Internet in
Europe (30R (12) 30)

 168lNRA

actions

could

include

conducting

technical

traffic

management

measurements, eg for detecting infringements such as the blocking or throttling
the traffic. NRAs can build on available tools”. but need to adapt measurements
schedules and technical set-ups to specific measurement cases Measurement
results have to be evaluated carefully.
169.NRAs should develop appropriate monitoring policies for detecting infringements
of the Regulation and determining necessary actions for guaranteeing that the
rights and obligations set out in the Regulation are fulfilled.

H

.

.

5 35

:

170. AS performance assessment can be performed at the user or market level:
- User-level assessment: end-user measurements of the performance of

IAS offers can be performed to check whether the ISP is fulfilling his
contract.
Measurement results are compared to the contracted
performance of the IAS offer.
0

Market-level assessment: user-level measurement results are summarised

into aggregated values for different categories such as lAS offers. ISPs.
access technologies (DSL, cable, fibre etc). geographical area etc.
Aggregated measurement results can be used for market-level
assessments
171.NRAs can use market-level assessment for the regulatory supervision
envisaged by Article 5(1) to:
o crosscheck that the published information is consistent with monitoring
results (see paragraph NRAs );

0

check that specialised services are not provided at the expense of IAS;

0

check that the performance of IAS is developing sufficiently over time to
reflect advances in technology.

172. Market-level assessment data can also be used for:
o transparency purposes by publishing statistics, as well as interactive maps
showing mobile network coverage or average performance in a
geographic area for fixed access networks;

.

considering the availability of different IAS offers or offer ranges provided
by lSPs, as well as their penetration among end-users;

o

assessing the quality for a specific type of IAS, eg. based on an access
technology (such as DSL, cable or fibre);

36

There are muliple tools available in the market

 comparison of IAS offers in the market;
investigating possible degradation caused by specialised services.

5l

.

.

E

.

EE

173.NRAs should monitor transparency requirements on ISPs and could do this by:
monitoring that ISPs have specified and published the required information
according to Article 4(1);

checking

that such

information

is

clear,

accurate.

relevant

and

comprehensible;

cross-checking that the published information is consistent with monitoring

results regarding Article 3, such as traffic management practices. IAS
performance and specialised services;
monitoring that ISPs put in place transparent. simple and efficient
procedures to address complaints as required by Article 4(2);

collecting information on complaints related to infringements of the
Regulation.

Enhancement
174. n order to ensure compliance with the Regulation. and to promote the continued
availability of non-discriminatory IAS at levels of quality that reflect advances in
technology, NRAs could decide to:
require an ISP to take measures to eliminate or remove the factor that is
causing the degradation;

set requirements for technical characteristics to address infringements of
the Regulation, for example, to mandate the removal or revision of certain
traflic management practices;

impose minimum QoS requirements;
impose other appropriate and necessary measures, for example,
regarding the lSPs' obligation to ensure sufficient network capacity for the
provision of high-quality non-discriminatory IAS (Recital 19);

issue cease and desist orders in case of infringements. possibly combined
with periodical (dailyMeekly) penalties, in accordance with national law,
impose cease orders for specific specialised services unless sufficient
capacity is made available for IAS within a reasonable and effective
timeframe set by the NRA, possibly combined with periodical
(daily/weekly) penalties, in accordance \M'th national law.
impose fines for infringements, in accordance with national law.

175.In the case of blocking and/or throttling, discrimination etc. of single applications
or categories of applications, NRAs could prohibit restrictions of the relevant
ports or limitations of application(s) if no valid justification for non-compliance
with the Regulation. especially Article 3(3) third subparagraph. is provided.
Measures under Article 5(1) could be particularly useful to prohibit practices that
clearly infringe the Regulation. Measures could include:
prohibiting blocking and/or throttting of specific applications;

 -

prohibiting a congestion management practice which is specific to
individual applications;

0

requiring access performance. such as minimum or normally available
speeds. to be comparable to advertised/maximum speeds;

o

placing qualitative requirements on the performance of application-specific

traffic.
176.Requirements and measures could be imposed on one or more ISPs. and it may
also, in exceptional cases, be reasonable to impose such requirements in
general to all ISPs in the market.

177.The imposition of any of these requirements and measures should be assessed
based on its effectiveness, necessity and proportionality:
- Effectiveness requires that the requirements can be implemented by
undertakings and are likely to swiflly prevent or remove degradation of IAS
offer available to end-users or other infringements of the Regulation.
0

Necessity requires that. among the effective requirements or measures,
the least burdensome is chosen, i.e. other regulatory tools should be
considered and deemed insufficient, ineffective or not able to be used fast

enough to remedy the situation.
-

Proportionality implies limiting the requirements to the adequate scope,
and that the obligation imposed by the requirement is in pursuit of a
legitimate aim, appropriate to the pursued aim and there is no less
interfering and equally effective alternative way of achieving this aim. For
example. if specific ISPs offer degraded IAS services or infringe the traffic
management rules of the Regulation, then the proportionate requirements
may focus on these ISPs in particular.

.

5

E!

178.The reports must be published on an annual basis, and NRAs should publish
their annual reports by 30" June for the periods starting from 1' May to 30‘“
April. The first report is to be provided by 30‘“ June 2017. covering the period
from 30" April 2016 to 30th April 2017 (the first 12 months following application
of the provisions).

179.As well as being published. the reports should be provided to the Commission
and to BEREC. To enable the Commission and BEREC to more easily compare
the reports. BEREC recommends that NRAs include at least the following
sections in their annual reports:
0 overall description of the national situation regarding compliance with the
Regulation;

0

description of the monitoring activities carried out by the NRA;

0

the number and types of complaints and infringements related to the
Regulation;

.

main results of surveys conducted in relation to supervising and enforcing
the Regulation;

 0

main results and values retrieved from technical measurements and
evaluations conducted in relation to supervising and enforcing the
Regulation;

0

an assessment of the continued availability of non-discriminatory lAS at
levels of quality that reflect advances in technology.

0

measures adopted/applied by NRAs pursuant to Article 5(1).

Article 5(2)
At the request of the national regulatory authority, providers of electronic communications
to the public, including providers of intemet acces services, shall make available to that
national regulatory authority information relevant to the obligations set out in Articles 3 and
4, in particular infomiation concerning the management of their network capacity and
traffic, as well as justifications for any traffic management measures applied Those
providers shall provide the requested infmnation in accordance with the time-limits and the
level of detail required by the mtional regulatory authority.
180.NRAs may request from ISPs information relevant to the obligations set out in
Articles 3 and 4 in addition to the information provided in contracts or made
publicly available. The requested information may include. but is not limited to:
o more details and clarifications about when. how and to which end.users a
traffic management practice is applied;

0

justifications of any traffic management practice applied. including whether
such practices adhere to the exceptions of Article 3(3) letters (a)-(c). In
particular.
0 regarding Article 3(3) letter (a). the exact legislative act. law. or order
based on which it is applied;
0 regarding Article 3(3) letter (b). an assessment of the risk for the
security and integrity of the network;

0 regarding Article 3(3) letter (c). a justification of why congestion is
characterised as impending. exceptional or temporary. along with past
data regarding congestion that confirms this characterisation. and why
less intrusive and equally effective congestion management does not

suffice,
0

requirements for specific services or applications that are necessary in
order to run an application with a specific level of quality;

0

information allowing NRAs to verify whether. and to what extent,
optimisation of specialised services is objectively necessary;

-

information about the capacity requirements of specialised services and

other information that is necessary to determine whether or not sufficient
capacity is available for specialised services in addition to any IAS
provided. and the steps taken by an ISP to ensure that;
0

information demonstrating that the provision of one or all specialised

services provided or facilitated by an ISP is not to the detrirrent of the
availability or general quality of IAS for end-users;

 0

details about the methodology by which the speeds or other 008
parameters defined in contracts or published by the ISP are derived;

0

details about any commercial agreements and practices that may limit the
exercise of the rights of end-users according to Article 3(1), including
details of commercial agreements between CAPS and ISPs;

0

details about the processing of personal data by ISPs;

-

details about the type of information provided to the end-users from iSPs
in customer centres, helpdesks or websites regarding their IAS;

o

the number and type of end-user complaints received for a specific period;

0

details about the complaints received from a specific end-user and the
steps taken to address them.

Article 5(3)
By 30 August 2016, in order to contribute to the consistent application of this Regulation,
BEREC shall, alter consulting stakeholders and in close cooperation with the Commission,

issue guidelines for the implementation of the obligations of national regulatory authorities
under this Article.
181.These Guidelines constitute compliance with this provision. BEREC will review
and update the Guidelines as and when it considers it to be appropriate.

Article 5(4)
This Article is without prejudice to the tasks as
d by Member States to the mtional
regulatory authorities or to other competent authon es in compliance with Union law.
182.NRAs and other competent authorities may also have other supervision and
enforcement tasks assigned to them by Member States in compliance with
Union law. Such duties may arise out of. for example. consumer and competition

law. in addition to the regulatory framework for electronic communications.
Article 5(4) does not affect the tasks of NRAs or other competent national or
European authorities arising from such laws, regardless of the fact that such
tasks may overlap with the duties of NRAs (or other competent authorities) as

set out in the Article. The Regulation does not affect NRAs‘ or other national
authorities’ competences to supervise and enforce Directive 95/46/EC or
Directive 2002/58/EC referred to in Article 3(4), as such tasks continue to be
assigned by national law

Article 6
Penalties
Member States shall lay down the rules on penalties applicable to infi'ingements of Arh'cles
3, 4 and 5 and shall take all measures necefiary to ensure tlmt they are implemented. The
penalties provided for must be efi'ective, proportionate and dissuasive. Member States shall
notify the Commision of those rules and measures by 30 April 2016 and shall notify the
Commission without delay of any subsequent amendment afi‘ecting them.
183AThis provision is aimed at Member States and no guidance to NRAs is required

 Aflkb10
Entry into force and transitional provisions
Article 10(1)
This Regulation shall enter into force on the third day following that of its publication in
the Oficial Journal of the Eur. . -..; Union.
184rThe Regulation entered into force on 29 November 2015.
Article 10(2)

It shall awly from 30 April 2016, except for the following:

[---1
(c) Article 5(3) slnll apply Born 29 November 2015;

[...]
185.The Regulation applies from 30 April 2016. except for Article 5(3) which obliges
BEREC to issue these Guidelines and which applies from 29 November 2015.

186.When monitoring and ensuring compliance with Articles 3 and 4. NRAs should
take into account that the provisions of the Regulation apply to all existing and
new contracts”7 With the exception of Article 4(4). which applies only to contracts
concluded or renewed from 29 November 2015. In turn. this means that. for a
transitional period. Article 4(4) is not applicable to a certain amount of contracts.
However. Article 4(4) will become applicable to more and more contracts over
time once they are renewed or newiy concluded.

Article 10(3)
Member States may maintain until 31 December 2016 national measures, including selfregulatory schemes, in place before 29 November 2015 that do not comply with Article 3(2)
or (3). Member States concerned shall notify those measures to the Commission by 30 April
2016.
187.Article 10(3) is addressed to Member States However. when assessing
compliance with Article 3(2) and (3). NRAs should take into account that national
measures. including self-regulatory schemes, might benefit from a transitional
period until 31 December 2016 when they may be maintained. provided that
they were in place before 29 November 2015 and have been notified by the
respective Member State to the Commission by 30 April 2016. In that event. no
37

See paragraph Articles 4(1). 4(2) and 4(5) apply to all contracts regardless of the date the contract is
reminded or rurcwcd, Article 4(4) applies only to contracts concluded or renewed from 29 Novunbcr 2015. of
these Guidelines

 breach of Article 3(2) and Article 3(3) would be found during this transitional
period.