"Router freedom": the (qualified) right for users to choose their own terminal equipment
The Dutch Consumers and Markets Authority has announced that, if a Dutch entity of Vodafone, Vodafone Ziggo, does not act rapidly to ensure that users can select and use their own terminal equipment, it will issue a fine of €12,500 per day, up to a maximum of €500,000, until Ziggo resolves the situation.
The full ruling of the ACM is available in Dutch.
This blogpost sets out the basic principles of the (qualified) right for users to choose their own terminal equipment, in the EU/UK.
What is "router freedom" / "modem freedom"?
Router / modem freedom is the right for subscribers or users of communications services - including fixed and mobile Internet access and telephony - to use terminal equipment of their own choosing. It's a qualified right, meaning that it is not absolute (see below).
"Terminal equipment" is equipment used to connect, directly or indirectly, to a public network. (It includes satellite earth station equipment, but I am not going to consider that further here.)
Exactly what comprises "terminal equipment" will depend on the network in question, and the location of the network termination point. The network termination point could be, for example, a socket on the wall, a particular port on a piece of equipment, or the edge of a radio access network. The terminal equipment could be a modem, a firewall/router, or a phone or dongle into which the consumer places a SIM.
Because the principle of "router freedom" is dependent on the NTP, even before one considers the qualifications to the right, a provider may still be permitted, legally, to impose requirements relating to equipment in the customer's premises - usually equipment that the provider suppliers - if that equipment forms part of their network (i.e. the equipment sits on the provider's side of, or contains, the NTP).
(Although the right to choose terminal equipment is sometimes described as "router freedom", this seems unnecessarily limited to me. For example, if the customer needs a modem to connect to the NTP, referring to it as solely a router-related issue is wrong. But SEO is SEO, so I'll use "router freedom" occasionally in here anyway.)
The legal basis for "router freedom" in the EU/UK
The legal basis for router / modem freedom comes from Regulation 2015/2120.
Recital 5 sets out the principle:
When accessing the internet, end-users should be free to choose between various types of terminal equipment as defined in Commission Directive 2008/63/EC. Providers of internet access services should not impose restrictions on the use of terminal equipment connecting to the network in addition to those imposed by manufacturers or distributors of terminal equipment in accordance with Union law.
Regulation 3 sets out the EU-level rule:
(1) End-users shall have the right to ... use terminal equipment of their choice ... via their internet access service.
(2) Agreements between providers of internet access services and end-users on commercial and technical conditions and the characteristics of internet access services ... shall not limit the exercise of the rights of end-users laid down in paragraph 1.
(3) Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of ... the terminal equipment used.
(The "via their internet access service" in Article 3(1) doesn't make much sense for the particular right relating to terminal equipment; it works better in respect of the other rights covered by Article 3(1), which I've trimmed out here for clarity.)
There are limited derogations to Article 3(3), for:
- reasonable traffic management measures; and
- other measures, where necessary and only for as long as is necessary to:
- comply with a legal obligation; or
- preserve the integrity and security of the network, of services provided via that network, and of user terminal equipment; or
- prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.
(25) ... end-users have the right to use terminal equipment of their choice. Directive 2008/63/EC defines “terminal equipment” as “equipment directly or indirectly connected to the interface of a public telecommunication network”. The right to choose terminal equipment therefore covers equipment which connects to the interface of the public telecommunications network. This interface, the network termination point (NTP), is defined in Article 2(9) of the EECC referring to the physical point at which an end-user is provided with access to a public electronic communications network.
(26) In considering whether end-users may use the terminal equipment of their choice, NRAs should assess whether an ISP provides equipment for its subscribers and restricts the end-users’ ability to replace that equipment with their own equipment, i.e. whether it provides “obligatory equipment”.
(27) Moreover, NRAs should consider whether there is an objective technological necessity for the obligatory equipment to be considered as part of the ISP network. If there is not, and if the choice of terminal equipment is limited, the practice would be in conflict with the Regulation. For example, the practice of restricting tethering 16 is likely to constitute a restriction on choice of terminal equipment because ISPs “should not impose restrictions on the use of terminal equipment connecting to the network in addition to those imposed by manufacturers or distributors of terminal equipment in accordance with Union law” (Recital 5).
(Yes, these are draft guidelines, but the only change in this bit, when compared with the last issued version from 2020, is the addition of the reference to the EECC in paragraph 25, since this has superseded the law referenced in the previous version.)
Examples of approaches which might, and might not, infringe the user's right to select their own terminal equipment
Exactly what is, and is not, problematic depends on the specific situation.
In my opinion, examples of behaviour which is likely to infringe the right of the user to select their own terminal equipment include:
refusing to provide information reasonably necessary to enable a customer to connect their own terminal equipment (e.g. PPP details, VLAN IDs).
restricting a connection to a particular MAC address, which the customer is unable to update.
charging a customer more if they want to use their own terminal equipment, or requiring them to be on a specific plan.
prohibitions on "tethering".
Conversely, to my mind at least, it is unlikely that a provider would infringe the right of the customer to select their own terminal equipment if a provider:
refused to provide technical support for a customer's choice of terminal equipment, or required the customer to connect equipment supplied by the provider for the purpose of verifying the correct functioning of the provider's network (i.e. up to the NTP).
linked the availability of additional services - such as guarantees of full-home Wi-Fi coverage - to the use of particular terminal equipment.
imposed a contractual obligation, or technical measure, to prevent the use of non-compliant equipment.
prevented or restricted the use of GSM gateways / "SIM boxes" - this is more controversial / arguable, but a prohibition seems unlikely to attract regulatory enforcement in the UK.
blocked the use of equipment it reasonably believed to be stolen (although this does not sit particularly comfortably with the qualifications in Article 3(3)).
The right to choose terminal equipment in the UK
Ofcom, the UK regulator, was interested in issues of "net neutrality" and an open Internet, years before legislation was adopted at EU level - see, for example, Ofcom's 2011 statement "Ofcom's approach to net neutrality". (The focus in 2011 was on traffic management and service discrimination, not terminal equipment, so if you read this, don't expect any analysis of terminal-related issues.)
The rules on "open Internet" in the UK are, for now, still aligned with the EU. I expect there to be a deviation reasonably soon - Ofcom consulted on net neutrality in late 2021 - but I am not convinced that there will be significant changes in respect of "router freedom".
As it stands, Ofcom takes a similar approach to BEREC: subject to the limited derogations in Article 3(3), users have the right to pick their own terminal equipment.
Ofcom is at least somewhat active in policing restrictions on user terminal equipment choice. In 2021, Ofcom said:
Ofcom was alerted to a mobile network’s ‘Fair Usage Policy’ that appeared to restrict the use of a mobile SIM card in fixed routers. We contacted the network operator in question and outlined concerns regarding placing restrictions on the use of terminal equipment of the consumer’s choosing.