What are Specialised Services and how are they relevant to the Open Internet Regulation?
The Body of European Regulators for Electronic Communications (BEREC) uses the term ‘Specialised Services’ as a short expression for a longer term used in Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access – the ‘Open Internet Regulation’: ‘services other than Internet Access Services (IAS) which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality’.
The BEREC Guidelines on the implementation of the Open Internet Guidelines – ‘BEREC Open Internet Guidelines’ – provide a few examples of what may be considered SpS, such as Voice over Long Term Evolution (VoLTE), a high-quality voice calling on mobile networks, and linear (live) broadcasting Internet Protocol Television services with specific quality requirements. Other examples include real-time health services (e.g. remote surgery). BEREC considers such services to be allowed as long as they meet the strict requirements of the Open Internet Regulation, set out in Article 3(5).
What is the necessity requirement and how will regulators assess it?
Under the Open Internet Regulation, in order for SpS to be permitted, they have to be objectively necessary to meet requirements for a specific level of quality. The BEREC Open Internet Guidelines recommend that National Regulatory Authorities (NRAs) assess this ‘necessity requirement’ by first requesting information from providers about their services, and then assessing whether the requirements are met.
When making their assessments, regulators will be particularly interested in technical parameters, such as latency, jitter and packet loss. The requirement does not refer only to standard Quality of Service (QoS) parameters, but may, for example, also apply to other quality parameters in novel networking paradigms such as M2M services. In such cases, the devices may be resource constrained, and the provisioning of services in the network may have to deal with issues such as energy exhaustion, interference and security to maintain a specific level of quality.
Taking into account these technical parameters, regulators should assess whether the specific level of quality is objectively necessary and cannot be assured instead over the internet. If the specific level of quality is not necessary, the service would not be allowed. If the service passes this test, regulators would also have to assess the ‘capacity requirement’ described below.
What is the capacity requirement and how will regulators assess it?
As a second major criteria, the Open Internet Regulation allows SpS to be offered when the network capacity is sufficiently large so that the IAS is not degraded. To assess the practice, BEREC recommends that regulators request information from Internet Service Providers (ISP) regarding how they are ensuring sufficient capacity and the scale of the SpS being offered.
The BEREC Open Internet Guidelines also explain that regulators could assess whether sufficient capacity is provided by performing measurements of the IAS. Regulators could perform quality measurements with and without SpS, and then analyse quality metrics such as latency, jitter and packet loss. This analysis should enable NRAs to assess whether the general quality of the internet access is reduced by the provision of specific SpS.
Can Machine-to-Machine services be Specialised Services?
The question regarding what qualifies as a SpS, and what criteria should be considered to assess this, has become even more relevant due to the public discussion about compatibility between Net Neutrality and the emerging 5G technologies. The Open Internet Regulation applies on a technologically neutral basis. The goal of the Open Internet Regulation is to safeguard IAS, and at the same time allow objectively and technically necessary SpS to be provided. This applies to any network technology, and 5G is no exception.
In M2M cases, the devices may be resource-constrained (e.g. limited processing power, battery lifetime and memory capacity) and the provisioning of services in the network may have to deal with issues such as energy exhaustion, interference and security to maintain a specific level of quality. Addressing these issues is essential in order to assure the specific level of quality of the services, and SpS could be justified in cases where the requirements cannot be fulfilled by the IAS for resource constrained devices.