Irish regulator ComReg lacks net neutrality enforcement powers

Irish regulator ComReg is not satisfied with the situation in the market as regards open internet access, but it lacks enforcement powers to intervene, follows from its report on net neutrality for the period from 1 May 2018 to 30 April 2019. Ireland is the only EU member country, whose national regulatory authority (NRA) lacks power to start formal investigations and to issue enforcement orders, as also the European Commission confirmed in its Study on the implementation of the open internet provisions of the Telecoms Single Market Regulation published on 30 April 2019.

ComReg’s priorities regarding Open Internet Access focus on:

  • general monitoring tools;
  • a certified measurement technique;
  • publicly available QoS checking solutions;

A preliminary version of general monitoring tools are in the process of being tested. A solution to a certified measurement technique has also been developed for use in enforcement cases when ComReg receives the anticipated enforcement powers. Regarding publicly available QoS checking solutions ComReg has committed resources to the development of a reference system measurement tool which is expected to be delivered to BEREC in Q3 2019.

ComReg maintains its preliminary view that net neutrality is primarily a compliance matter. However, as a result of initial enquiries, ComReg is aware that internet service providers (ISPs) are developing policies relevant to the net neutrality obligations and has engaged with ISPs in that regard.

ComReg has not commenced any formal assessment of ISP restrictions on the use of technically compliant terminal equipment.

ComReg is aware of zero rating practices in Ireland which may mirror those deployed in other EU member states. These include special provisions for music streaming services, video streaming/IPTV services and social media services. Neither ISPs nor the public should assume that ComReg is satisfied that such offers in the Irish market are necessarily compliant with the regulations.

Furthermore, ComReg is aware that a number of European NRAs have published analyses in which they set out arguments for not intervening in market practices or specific packages within their jurisdictions. In some cases these are quite detailed in nature. ComReg will consider whether it should publish such analyses in the future.

In the absence of enforcement powers, ComReg has not commenced formal assessments of agreements on commercial and technical conditions or of commercial practices such as zero rating or traffic price discrimination practices. Nevertheless ComReg is monitoring market activities in these areas.

As regards traffic managment practices, ComReg has made initial information requests. ComReg also surveys market information for evidence of such practices with analysis of end-user complaints and reports providing further detail in this area. ComReg’s modular network monitoring tool monitors port blocking, traffic management and other relevant practices by ISPs. This monitoring will be supported by further research and market surveillance. Practices relevant to the regulations have been detected and ComReg is keen to investigate these. . However, in the absence of enforcement powers, ComReg has not commenced formal assessments of these ISP practices.

Approximately 3% of total queries to ComReg regarding electronic communications services within the reporting period related to net neutrality matters. Of these, approximately two thirds concerned speed issues.

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