BEREC agrees that, for IoT/M2M services that require connectivity via electronic communication networks, specialised services could be used to implement the requirements by a given IoT/M2M service, provided that the conditions of Article 3(5) are met. “Assessment according to Article 3(5) first subparagraph” Stakeholder responses Some civil society respondents argued that the Guidelines should state that NRAs “should” (rather than “could”) request relevant information about specialised services from the provider (paragraph 108, paragraph 104 of the draft Guidelines). Some civil society respondents also emphasised their view that it should be the key features of a specialised service that determine whether optimisation is objectively necessary and there should be an assessment of whether some minor modifications could be made that would allow it to function on the normal internet. If a specialised service is not objected to, some CAP and civil society respondents emphasised their view that NRAs should then periodically review their decision to account for improvement in internet technologies. Furthermore, it was argued that BEREC should clarify that once an application delivered over the internet has been shown to be technically and commercially successful, then that application should not be a candidate for a specialised service (e.g. video- on-demand services, IPTV). There was also a suggestion from civil society respondents to add a reference to VoIP in paragraph 113 (paragraph 109 of the draft Guidelines), whilst agreeing with the text of paragraph 114 (paragraph 110 of the draft Guidelines). Some ISPs and other industry stakeholders reiterated the view that Article 3(5) first paragraph does not call for an ex-ante assessment of all optimized services (e.g. in reference to paragraph 106 / paragraph 102 of the draft Guidelines). Some ISPs suggested to delete the last sentence of paragraph 107 (paragraph 103 of the draft Guidelines) and amend other paragraphs, since they considered that the Regulation does not state that the only way to deliver specialised services shall always be via the ISP, and they believe it is wrong to conclude so. They suggested that the key point was to establish the demand from CAPs, using end-user demand as a proxy. Some ISPs and other industry stakeholders also argued that provisions, such as “strict admission control” and “logically separated from the IAS” in paragraph 110 (paragraph 106 of the draft Guidelines) are not consistent with the Regulation. Moreover, they argued that the term “logically separated” was debated by the co-legislators and rejected, so there was no legal basis for this definition and it is not necessary to ensure no negative impact on the IAS. They therefore suggested deleting all of the paragraph or just the second and third sentences. Some ISPs and other industry stakeholders argued that optimisation for the provision of specialised services can take place at any specified level of the network and does not necessarily require prioritization in the network but can alternatively be pursued using other instruments (e.g. CDN) on top of the network. With regard to paragraph 111 (paragraph 107 of the draft Guidelines), some other industry stakeholders reiterated the view that the draft Guidelines go beyond the Regulation by creating 31

new conditions for offering specialised services (also see the comments above on paragraph 104 / paragraph 100 of the draft Guidelines). They suggest deleting part of paragraph 111 (paragraph 107 of the draft Guidelines: “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”). Some ISPs raised concerns about paragraph 112 (paragraph 108 of the draft Guidelines) as it seemed to require wide-ranging and repeated assessments by NRAs, which removes clarity and certainty and may be detrimental to service innovation. They suggested deleting the paragraph. With regard to paragraph 112 of the draft Guidelines, some ISPs and other industry stakeholders reiterated their view that the draft Guidelines go beyond the Regulation by limiting the kind of VPNs that could be delivered as specialised services (for further details, see the arguments made in relation to paragraph 11). Therefore, they suggest deleting paragraph 112 of the draft Guidelines or rephrasing much of the first bullet to read: “A VPN service is typically used in the context of teleworking to connect to corporate services. In order to protect the information transferred, a VPN service encrypts all traffic between the VPN client and the VPN server located within the corporate network. Such services can be provided using an IAS or in parallel with IAS as specialised services.” BEREC response With regard to questions and comments about ex ante or ex post assessment, BEREC refers stakeholders to the introductory section to Article 3 above in which BEREC discusses this over- arching issue. Having taken into account the responses from stakeholders and having reviewed this section, BEREC decided to refer more consistently to “objectively necessary” in relation to the QoS requirements of specialised services, which is consistent with the Regulation. BEREC also made a minor change to paragraph 106 (paragraph 102 of the draft Guidelines) to better capture the possible ways in which the requirements of an application may be specified. With regard to the comments related to a “logically separated” connection, BEREC considered this reference in paragraph 110 (paragraph 106 of the draft Guidelines) to be focused on a specific technology and thus too prescriptive and adjusted this to reflect that this is a possible way in which a specialised service could be delivered. However, BEREC also included a reference in this paragraph to specialised services not providing connectivity to the internet, since BEREC considered this a practical description that would help to identify specialised services. BEREC also took into account stakeholders’ comments on the final sentence of paragraph 110 (paragraph 106 of the draft Guidelines), which referred to “extensive use of traffic management” and “strict admission control”. Since this was also too prescriptive and could exclude other possible technical solutions, BEREC decided to delete this sentence. With regard to the references to “key features”, BEREC believes that this has been appropriately emphasised in the Guidelines. 32

BEREC also provides some examples in this section of services that may be considered specialised services. As in other sections, these are intended to be neither prescriptive nor exhaustive but rather intended to highlight certain relevant issues and provide greater context for NRAs. With regard to paragraph 111 of the draft Guidelines, this was also intended to provide examples and context. However, taking into account the responses from some of the stakeholders, BEREC considered that the paragraph was unnecessary so it was deleted. Instead, this paragraph now contains a short clarification regarding provision of VPN services based on some text moved to this place from paragraph 11 of the draft Guidelines. Article 3(5) second subparagraph Stakeholder responses Some civil society respondents suggested that the introduction of specialised services should be notified to NRAs, with an assessment of whether there was sufficient capacity, with reference to paragraph 116 (paragraph 112 of the draft Guidelines). Others suggested that a case-by-case approach would conflict with the principle of the single market. Some civil society respondents suggested an alternative way of performing IAS quality measurements when assessing the impact of specialised services (paragraph 121 / paragraph 117 of the draft Guidelines), based on comparing quality measurements for the IAS and specialised service over comparable network routes. They argued that the methods currently proposed in the draft Guidelines are unlikely to be feasible (this also would apply in a reference in paragraph 121). Some CAP and civil society respondents disagreed with the drafting of paragraph 122 (paragraph 118 of the draft Guidelines). They argued that allowing specialised services to reduce the quality or ‘cannibalise’ the capacity of the IAS would not be justified, even when the effects are only experienced by the end-user receiving the specialised service (apart from in exceptional circumstances where this would not be technically possible). It was also argued that the current interpretation expressed in this paragraph contradicts the Regulation, contradicts paragraphs 117 and 121 (113 and 117 of the draft Guidelines) and runs counter to the legislative history of Article 3(5). It was noted that the Regulation requires specialised services to be offered ‘in addition’ to the internet and must not reduce the quality of the IAS. Regarding the legislative history and intentions of the Regulation, it was noted that Article 3(5) originally only prohibited a reduction in quality of the IAS to ‘other’ end-users, but this word ‘other’ was removed from the final text, showing that the legislators intended the protection to apply to all end-users, including the end-user receiving the specialised service. It was also suggested that the drafting of paragraph 122 (paragraph 118 of the draft Guidelines) was not in line with Article 4(1) (d) of the Regulation (on transparency) nor with paragraphs 146 and 148 (paragraphs 142 and 144 of the draft Guidelines), as the average and maximum bandwidth agreed between the ISP and the end-user would no longer be met. Some civil society respondents also argued that setting the threshold at the “minimum speed” would give ISPs an incentive to set the IAS at the minimum contractually agreed speed by default. Instead, in their opinion, it should still be possible to get the “maximum speed” unless there is an objective technical justification. They argued that reference to the “minimum speed” 33

contradicts Article 4 on transparency and may be problematic for mobile internet, for which “minimum speed” is not a requirement. From the perspective of some ISPs and other industry stakeholders, there were general concerns that there was an overly restrictive and disproportionate approach to specialised services. They also suggested that the term “specialised services” risks being too narrow and not future-proof. With regard to paragraph 118 (paragraph 114 of the draft Guidelines), some ISPs argued that this paragraph introduced an implicit obligation for ISPs to ensure a specific level of capacity. They were doubtful how ISPs would be able to prove that there was sufficient capacity and they argued that anyway the Regulation only provided for regulatory intervention if there was a degradation in the availability or general quality of IAS. With regard to the reference “...such that the IAS is not degraded” in paragraph 116 (paragraph 112 of the draft Guidelines), ISPs stated that this provision is not consistent with the Regulation, which only referred to the availability and general quality. They argued that some degradation is inevitable at any given point in time if a new service is introduced. They also argued that, for instance in a mobile network, the internet access service of one user can be degraded by another user of the internet access service in the same cell, yet both users may have sufficient capacity to enjoy the service. Therefore, they suggested that the Guidelines should be more flexible and emphasise the criterion of “sufficient” capacity or “general quality”, which is the test that is consistent with the Regulation, and not impose a higher threshold for allowing specialised services. With regard to paragraph 120 (paragraph 116 of the draft Guidelines), ISPs explained that NRAs should not make assessments regarding network capacity if there are no recorded or anticipated problems in the market, since in their experience, third-party applications for broadband speed tests are generally better than NRA developed applications. Some ISPs even argued that NRAs should not have the power to investigate network capacity. Regarding paragraphs 125 and 121 (paragraphs 121 and 117 of the draft Guidelines), some ISPs argued that it should be left to the NRA to decide the methodology to analyse on a case- by-case basis. There was also a suggestion to delete paragraph 121 (paragraph 117 of the draft Guidelines). Alternatively, some ISPs suggested that the provision of specialised services should be examined whilst taking into account how those services would be delivered without specialised services on the IAS, or taking into account the IAS capacity saved by having non- IAS provided outside the IAS and taking into account the investment already made into the network in anticipation of optimised services. With regard to paragraph 122 (paragraph 118 of the draft Guidelines), some ISPs and other industry stakeholders considered that it would not be in end-users’ interests to block capacity for IAS if it is not used for IAS. BEREC response With regard to questions and comments about ex ante or ex post assessment, BEREC refers stakeholders to the introductory section to Article 3 above in which BEREC discusses this over- arching issue. However, BEREC also made a minor adjustment to the wording of paragraph 118 (paragraph 114 of the draft Guidelines) in order to remove an impression that an ex ante assessment was necessarily foreseen. 34

With regard to short-term IAS quality measurements, BEREC considered it appropriate to specify that these may be performed “for individual users” (paragraph 121 / paragraph 117 of the draft Guidelines), which may be necessary to fully assess the impact of specialised services. The Regulation states that the provision of specialised services should not be to the detriment of the availability or general quality of IAS. However, BEREC considered it appropriate to highlight in the Guidelines that there may be situations in practice in which there must be some impact on the IAS of end-users who have also chosen to receive specialised services, e.g. IPTV over xDSL. In referring to such unavoidable cases, BEREC emphasises that it is important that the end-user (i) is informed of such likely impact; (ii) may determine how to use the dedicated capacity; and (iii) can obtain the contractually agreed speeds. With regard to the examples of ways in which NRAs may assess whether the provision of specialised services reduces IAS quality (paragraph 124 / paragraph 120 of the draft Guidelines), BEREC has made it more clear that these are suggestions that NRAs may follow by replacing “should” with “could”. BEREC considers that the Regulation still empowers NRAs to make the relevant assessments, but there is no need to require NRAs to follow these particular suggestions if they determine that an alternative approach would also be effective. BEREC also made a minor change to the wording in paragraph 123 (paragraph 119 of the draft Guidelines) in order to be less categorical in the description of the number of users and traffic volumes in fixed networks. With regard to paragraphs 126-127 (paragraphs 122-123 of the draft Guidelines), BEREC highlighted the potential risk of specialised services being provided in order to circumvent the provisions of the Regulation for IAS. The guidance BEREC provided is based on a description of this risk, but BEREC considers that it is sufficiently clear that these issues will be subject to NRAs’ assessments and the Guidelines do not go beyond the Regulation by prohibiting certain services outright. 35

Article 4 Transparency measures for ensuring open internet access Article 4(1) Stakeholder responses Some civil society respondents suggested widely replacing “NRAs should” by “NRAs shall” when specifying actions for them to take under Article 4(1), which it considered more in line with NRAs’ obligations under Article 5. Some civil society respondents also suggested that information should be comparable, not just between different offers from the same ISP, but also between different ISPs (paragraph 130 / paragraph 126 of the draft Guidelines), rather than “preferably” so. Some civil society respondents also suggested rephrasing paragraph 133 (paragraph 129 of the draft Guidelines), namely replacing “might” with “may” to be more consistent with the language in Directive 93/13/EEC on Unfair Contract Terms. With regard to paragraph 131 (paragraph 127 of the draft Guidelines), and much of Article 4(1) in general, some ISPs and other industry stakeholders did not consider the provisions necessary or appropriate. For instance, they stated the current regulatory framework, including the Universal Service Directive and Consumers Rights Directive, already mandates ISPs to provide a lot of specific information to end-users. They also suggested such provisions go beyond the Regulation, could imply contractual changes after minor updates to traffic management and would confuse end-users, so should be deleted. Some ISPs and other industry stakeholders did not share BEREC’s interpretation (first sentence of paragraph 134 / paragraph 130 of the draft Guidelines) that Articles 4 (1), 4(2) and 4(3) should apply to any contract in the market, whether entered into before or after 30 April 2016, considering that there was no legal basis for this (also relevant for paragraph 190 / paragraph 186 of the draft Guidelines). Instead, they claimed that these provisions should apply only to contracts concluded or renewed from 30 April 2016. Some ISPs and other industry stakeholders also considered that, since BEREC is obliged to provide guidance by 30 August 2016, this creates some legal uncertainty and raises the question of retrospective application, which may have undesirable effects (e.g. confusion, loss of trust, termination of contracts). Therefore, they suggested that the Guidelines should explicitly grant NRAs flexibility about the point in time when to consider the Guidelines as a possible benchmark for providers’ compliance (e.g. not earlier than 12 months after final adoption of the Guidelines). Some other industry stakeholders also raised concerns about the impact of the Guidelines on existing contracts, in particular corporate contracts. They argued that new rules should only apply to new contracts. Some ISPs requested further consultation on the national implementation of transparency obligations. 36

BEREC response With regard to requests to replace suggestions in the Guidelines with more prescriptive language, in particular by replacing “NRAs should” with “NRAs shall”, BEREC considers that the original text was more appropriate for the Guidelines, of which NRAs should take utmost account, and that the use of the instruction “shall” is more appropriate in legislative documents. With regard to paragraph 130 (paragraph 126 of the draft Guidelines), BEREC modified the wording to align more closely with the Regulation in order to clarify the legal basis for this particular guidance (moving some text from what was originally in paragraph 133 of the draft Guidelines). With regard to the presentation of information in two parts (levels of detail) (paragraph 131 / paragraph 127 of the draft Guidelines), BEREC notes that Member States might already have distinct approaches to the provision of such information. Such approaches might be equally effective as those foreseen in the draft Guidelines). Therefore, BEREC considered it appropriate to amend the guidance to reflect that this particular approach “could” be followed, rather than necessarily being “preferable”. BEREC also made one other minor change to the wording of this paragraph to reflect a particular requirement of Article 4(1). With regard to concerns raised about the application of the Regulation to existing contracts, BEREC reiterates its position that Article 4(1), 4(2) and 4(3) apply to both new and existing contracts as there is no clause related to transitional periods in the Regulation, and with regard to the “argumentum a contrario” in Article 4(4). BEREC has simply noted that modifications to contracts are subject to national legislation implementing Article 20(2) of the Universal Service Directive. Article 4(1) (a) Stakeholder responses Some civil society respondents suggested paragraph 135 (paragraph 131 of the draft Guidelines) should specify some additional information to be provided to end-users on definitions of impending, exceptional and temporary congestion and how traffic management could affect them, distinguishing between the techniques applied in accordance with the second and third subparagraphs of Article 3(3). However, according to some ISPs, the provisions in paragraphs 135-139 (paragraphs 131-136 of the draft Guidelines) were unreasonably restrictive. They suggested that more flexibility should be provided for network operators, noting that operators will need to change their traffic management practices from time to time with experience and to respond to changing traffic and congestion patterns. Therefore, BEREC should clarify that such changes do not trigger the right of the end-user to withdraw in paragraph 134 (paragraph 130 of the draft Guidelines). BEREC response In this section BEREC made some slight adjustments to align with the text of the Regulation, namely by replacing “concise” with “clear” and “techniques” with “measures”. 37

Article 4(1) (b) Stakeholder responses Some civil society respondents suggested that data volumes and speeds should be specified in numerical values. With regard to the consequences of exceeding data caps, they suggested that consumers should be able to choose whether to have speed reduced or pay for additional volumes of data without a reduction in speed. They also suggested that the Guidelines state that “unlimited” data offers should truly be “unlimited” and not used in combination with a “fair use” policy. However, some ISPs asked BEREC to remove reference to detailed information being provided in contracts (to assess the IAS performance) arguing that the average customer cannot understand the details BEREC considers useful and the examples are not necessarily good indicators of IAS performance. BEREC response With regard to the concern that certain information would not be practical or understandable for end-users, BEREC emphasises that the provisions of the Guidelines in this section are meant to provide end-users with relevant information to understand the implications for their use of the IAS, not necessarily to provide the technical parameters. With regard to some of the other suggestions for stakeholders, BEREC notes that they relate generally to individual commercial negotiations or to advertising regulation, for which BEREC cannot provide guidance. Article 4(1) (c) Stakeholder responses Some civil society respondents suggested that additional guidance should be provided about the information that should be published by ISPs about the impact of specialised services on the IAS. BEREC response BEREC refer stakeholders to the section above on Article 3(5) second subparagraph above, where the issues raised are discussed in more detail with reference to paragraph 122 (paragraph 118 of the draft Guidelines). Article 4(1) (d) Stakeholder responses Some ISPs argued that the recommendation to indicate a “single numerical value” as proposed in paragraph 140 (paragraph 137 of the draft Guidelines) is questionable. Considering the negative impacts, the little benefit for end-users and the lack of respective rules within the Regulation, they suggested providing speed ranges or deleting paragraphs 140 and 144 (137 and 141 of the draft Guidelines). 38

Some ISPs asked BEREC to amend the text regarding minimum and maximum speeds, arguing this requirement is unrealistic and counterproductive. They suggested that providers might have to indicate lower minimum and maximum speeds, even though it is possible to have better speed in practice. More generally, some ISPs argued that the draft Guidelines proposed a more harmonized approach to contracts and speeds information than is necessary or appropriate. They considered that NRAs should be able to make decisions at the member state level. They also pointed out that an obligation to amend contracts would, in some jurisdictions (such as the UK) also mean that consumers have a right to cancellation. However, some ISPs suggested that a more harmonised approach was needed, with a common methodology to determine speed thresholds. They also argued that the Guidelines should take into account that speeds can be affected by factors beyond the control of ISPs. BEREC response BEREC decided to make a minor additional reference in paragraph 140 (paragraph 137 of the draft Guidelines) to “transport layer protocol payload” when discussing how speeds should be specified for completeness/clarity. BEREC refers stakeholders to the introductory section on Article 4(1) above where the general approach to providing information to end-users is discussed and to the section below in which information on connection speeds is discussed in more detail. “Specifying speeds for an IAS in case of fixed networks” Stakeholder responses Some civil society respondents considered that NRAs should set requirements on the relationship between the minimum and normally available speeds to prevent ISPs from having an incentive to define excessively low minimum speeds. However, according to some ISPs and other industry stakeholders the provisions of paragraphs 143 and 144 (paragraphs 140 and 141 of the draft Guidelines) were overly prescriptive. They argued that providing speed ranges with regard to Article 4(1) (d) is impractical, will not improve transparency on individual performance and will likely impact national broadband targets negatively. They suggested deleting paragraph 141. It was also suggested that a requirement to provide information in a contract should be interpreted in the context of national contract law. Some civil society respondents argued that the maximum speed should be something that is achievable more than once per day, for instance under normal circumstances throughout the day. Others considered that achieving the maximum speed once per day would not meet expectations and would mean that advertising of maximum speeds would be misleading. However, ISPs argued that in BEREC’s interpretation of maximum speed in paragraph 145 (paragraph 142 of the draft Guidelines), end-users would be less accurately informed and ISPs would be forced to lower the offered maximum speed even if that speed is available in most cases. According to their views, BEREC’s description of the maximum speed would mean that cable networks will be able to indicate higher maximum speeds than DSL networks, which might be obliged to even indicate speeds below the technically available 39

maximum. The proposed definition that refers to speed that is available “some of the time (e.g. at least once a day)” is, according to this view, not “technologically neutral” and unjustifiably goes beyond the Regulation. Some suggested that this criterion is deleted or that the maximum speed indicated in the contract for the DSL network should correspond to the technically available maximum speed of an individual line or should be based on general information, not specific to each end-user. They also suggested deleting paragraph 146 (paragraph 143 of the draft Guidelines). Some civil society respondents suggested that BEREC should provide more guidance on how to define “normally available speed” and the relationship between it and the minimum and maximum speeds to avoid fragmentation in approaches developing across Europe. Additional guidance was also requested regarding the speed if and when specialised services were in use. However, according to ISPs the “normally available speed” will further restrict the indication of maximum speed and this limitation applies even if the speed is available to customers. They also suggested that “normally available speed” will not reflect the experience of users during most times of the day. Considering these points, they suggested that the reference to maximum speed included in paragraph 148 (paragraph 145 of the draft Guidelines) should be deleted. Regarding the provisions on advertised speeds, some civil society respondents suggested new guidance related to normally available speed here too if/when specialised services are in use. Some ISPs and other industry stakeholders noted that paragraph 151 (paragraph 148 of the draft Guidelines) gives national regulators the possibility to require that the advertised speed should not exceed the maximum speed defined in the contract. They considered that there is no legal basis in the Regulation for such a requirement. More generally, some ISPs argued that the Regulation does not cover advertising practices and the Guidelines seem not to acknowledge or build on existing consumer protection legislation or practices, including self-regulatory codes. Some ISPs also considered that it does not make sense for the national reporting schemes to be reviewed again to satisfy the Guidelines, in particular when they already meet the criteria of the Regulation and to do so would not provide any customer benefit. They stated that research shows that customers find other parameters, such as continuity of service and getting the speed and capacity they require for the application they are running, are more important than maximum speed. BEREC response In this section of the Guidelines, BEREC provided examples and context to guide NRAs on their implementation of the Regulation. The approaches discussed are meant as suggestions or options for NRAs to use. Consistent with this, and having taken into account the comments from stakeholders, BEREC decided to modify the first sentence of this section in order to refer to “the speed that an end-user could expect to receive”, since the original text may have been misinterpreted as being overly prescriptive. 40