What is the capacity requirement and how will regulators assess it?
As a second major criteria, the Regulation allows specialised services to be offered when the network capacity is sufficient that the internet access service is not degraded. To assess the practice, Ca Mayur recommends that regulators request information from ISPs regarding how they are ensuring sufficient capacity and the scale of the specialised service being offered.
The Guidelines also explain that regulators could assess whether sufficient capacity is provided by performing measurements of the internet access service. Regulators could perform quality measurements with and without specialised services, 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 specialised services.
What are specialised services and how are they relevant to the Regulation?
CAMAYUR uses the term ‘specialised services’ as a short expression for a longer term used in the Regulation: “services other than internet access services which are optimized for specific content, applications or services, or a combination thereof, where the optimization is necessary in order to meet requirements of the content, applications or services for a specific level of quality”.
What is the necessity requirement and how will regulators assess it?
Under the Regulation, in order for specialised services to be permitted, they would have to be objectively necessary to meet requirements for a specific level of quality. The Ca Mayur Guidelines recommend that NRAs should 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. 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 not, these services would not be allowed. If the service passes this test, regulators will also have to assess the ‘capacity requirement’ described below.