Comments from Patrick Maillé (Telecom Bretagne, France, patrick.maille@telecom-bretagne.eu) and Bruno Tuffin (Inria, France, bruno.tuffin@inria.fr).

The main principle of the guidelines is « to safeguard equal and non-discriminatory treatment of traffic in the provision of Internet Access Service ». This principle is based on the initial issue of Internet Service Providers (ISPs) discriminating packets depending on the source or the type of traffic. The induced notion of traffic seems limited to packets crossing routers and cables within the network, and which ISP-controlled routers should treat equally.

So the neutrality debate has been focusing on a supply chain of the form  content - ISPs - users, with ISPs as the only intermediaries. But the Internet ecosystem has evolved a lot, with many other intermediaries between content and users, which can also discriminate.

To illustrate this, let us mention two examples:

- Content Delivery Networks (CDNs). CDNs are service providers controlling large distributed systems of servers deployed
in the Internet. The most popular pieces of content are stored in servers closer to end users, and can therefore be downloaded with better quality. CDNs have become major intermediaries between users and content, speeding up access to content and reducing the load on the network. But CDNs can differentiate service among content providers based on financial agreements or other reasons, and then yield an illegitimate competitive advantage to some actors. This without violating the principle of equal treatment within routers. Such practices could harm innovation and competition both at the content and at the ISP sides. Even ISPs could potentially vertically integrate a CDN activity and differentiate traffic there instead of within routers, as a way to circumvent neutrality rules.
  
- Search Engines (SEs) are another kind of key intermediary between users and content. The ranking of a content provider impacts its number of visits, hence its business. Search engines are assumed to rank content according to a notion of relevance for each keyword, but there is a concern that they also include economic considerations to increase their revenue by, for example, ranking their own content higher.  This has ignited the so-called « search neutrality debate » which to our opinion should be encompassed in the network neutrality one.

We therefore believe that the notion of « traffic » needs to be defined more clearly to handle all types of intermediaries and ensure a « fair » treatment without economic discrimination. It also means a requirement to define a notion of fairness for each type of service (it would be good for a definition to be adaptive). Indeed, if we think about CDNs or SEs, they differentiate service by nature, by respectively storing the most popular and ranking most relevant content first. The notion of « equal treatment » has to be replaced by a « fair treatment », to be defined.