Published: 11.36 Europe/London, April 19, 2011

The European Commission is to ask telecoms regulators to investigate whether internet service providers policies on traffic shaping do so in a way that harms consumers.

New legislation could follow if the Commission is not satisfied that operators are adhering to its rules on Net Neutrality, published today. Neelie Kroes, European Commissioner for the Digital Agenda said she would closely monitor the implementation of the rules to ensure an open internet. “At the end of 2011, I will publish the results, including any instances of blocking or throttling certain types of traffic,” she said in a statement. “If I am not satisfied, I will not hesitate to come up with more stringent measures, which may take the form of guidance or even general legislative measures to achieve the competition and choice consumers deserve,” Kroes said. “If this proves to be insufficient, I am ready to prohibit the blocking of lawful services or applications.” The work will be handled by the Body of European Regulators for Electronic Communications (BEREC).

Many operators slow down the service provided to customers that are perceived to exceed normal usage patterns. The Commission says that new legislation may be required if operators are perceived to lack transparency in their actions. The investigation will run across telcos, cablenets and mobile providers.

Advocates of Net Neutrality argue that all traffic should be treated equally, regardless of who is the owner, and the type of content concerned.

“As more time sensitive applications come on line, it’s important to debate the best ways to manage traffic to ensure a great online experience but we have no plans to prioritise particular content on the basis of who publishes or owns it,” said a Virgin Media spokesperson. The operator is generally accepted to have created an industry best practice in the treatment of internet content.

However, there is concern that some operators are deliberately slowing down access to rival streaming services running on their networks, a practice also denied by the cable sector’s trade body.

“Our member companies do not block content or applications, and we believe in full transparency for the European consumer,” said Caroline Van Weede, managing director of Cable Europe. “The intense competition in this market requires us to perform on quality of service, speed and consumer trust. Individual companies that behave anti-competitively can be sanctioned through current provisions in Telecoms legislation and Competition rules. But, in the end, the sanction of the customer is most swift given countless social networking tools, blogs and fast moving web publications. Van Weede said the industry could not afford to violate consumer trust.

The Commission has not set a precise definition of ‘net neutrality’ but it will be a legal requirement under EU law as from 25 May 2011 that Member States’ telecoms regulatory authorities promote the ability of internet users “to access and distribute information or run applications and services of their choice”. It has also said there must be transparency, quality of service (with national regulators able to set minimum quality levels) and the ability for consumers to switch operators within one day.