Summary

  • BEREC’s draft does not give every 5G slice a legal safe harbour. A provider must distinguish an application-agnostic internet access offer from a specialised service and assess the conditions that apply to each.
  • For a specialised service, the useful proof connects the service’s quality need to available internet access alternatives, planned capacity and what users experience in the cells where the slice runs.

The stadium is a capacity test, not a technology demo

A broadcaster wants to send several camera feeds from a stadium to a control room during a match. BEREC uses a similar situation in its draft guidance: the uplink is time-sensitive, the service is confined to the event, and the same radio cells also carry ordinary internet access. A separate logical lane can help deliver the broadcast. It cannot, by itself, answer what happens to the people using those cells to upload photos, make calls or reach other services.

That is the regulatory problem hidden by the word “slice”. Network slicing partitions a physical network into logical networks with different service conditions. In a 5G standalone network, some resources can be allocated dynamically and shifted between slices under predefined rules. This may use the network more efficiently. It does not turn a shared radio cell into an unlimited resource or prove that capacity is sufficient.

BEREC’s 2 June document, BoR (26) 84, is still identified as a draft. Its consultation closed on 6 August. The draft says that the Open Internet Regulation does not prohibit slicing as a technology and that the OIR’s principles can apply to similar quality differentiation in other network technologies. That is narrower than a general approval of every commercial offer built on a slice.

The distinction begins with what the customer receives. An internet access service can offer different quality levels if the offer respects end-user rights and the rules for equal treatment. BEREC’s examples describe application-agnostic tiers and user choice as important: a customer may be able to assign any application to a quality level. An offer that reserves a lane for one selected application can raise a different problem because it may limit the user’s ability to choose and may not be application-agnostic.

A specialised service is a separate path under Article 3(5) of Regulation (EU) 2015/2120. Its conditions are cumulative. Optimisation must be necessary for the particular service’s quality requirements; it must not operate as a restricted replacement for general internet access; there must be enough capacity in addition to internet access; and the service must not harm internet access availability or general quality. Calling a product a private lane, premium service or slice cannot substitute for testing those conditions.

Necessity has to be compared with real alternatives

The first question is not whether a camera feed would work better with lower latency. It is whether the service needs a quality level that cannot be delivered through the internet access products that are actually available. BEREC’s draft points providers toward a practical comparison: specify the service’s requirements, compare them with the performance of standard and compliant differentiated internet access, and consider technically comparable services.

That comparison should cover the time period in which the service is expected to operate. A specialised-service case made before launch can weaken as ordinary access improves. BEREC says a service that no longer qualifies as specialised because internet access has improved should be allowed a reasonable transition for phase-out. The category therefore cannot be treated as a permanent property of the application or of the network architecture.

A network API request for guaranteed bandwidth or reduced latency is evidence of what an application asks for. It is not independent evidence that internet access cannot meet the need. The service provider may define requirements, but the network operator still has to explain why the chosen arrangement is necessary. The draft allows for service trials as a possible source of information; it does not make them compulsory or define one universal threshold.

“In addition” is an operating condition

The capacity condition is where a diagram of separate slices can mislead. A slice may have a logical boundary while sharing radio and transmission resources with internet access. BEREC says the capacity assigned to specialised services must not undermine the operator’s ability to meet its internet access quality obligations. Network capacity should be deployed ahead of predicted demand. Recurrent and long-lasting congestion is to be addressed by expanding capacity, not by treating persistent scarcity as an exceptional event.

Dynamic allocation can make the same resource serve different lanes at different moments. That can reduce idle capacity. It does not erase the need to estimate peak use across both the specialised service and internet access. The relevant account must describe how allocation behaves at busy times, not just the maximum rate promised in a service-level agreement.

The geographic unit also matters. The draft recognizes that an event slice may affect a limited number of cells for a short period. That can make the aggregate network effect smaller. It does not exempt an operator from preventing persistent degradation for internet access users served by the affected cells. A national average can look healthy while one stadium-adjacent sector repeatedly loses capacity during events.

BEREC lists possible evidence such as congested-cell counts, capacity utilisation, busy-hour traffic and monthly peaks. It also points to complaints and differences between actual and contractual speeds, latency, jitter or packet loss. These are suggested inputs to self-assessment, not a published mandatory scorecard. The examples are expressly generic and non-conclusive; real offers still need a case-specific assessment.

A draft leaves the evidentiary burden inside the operator

The draft says providers self-assess their services and do not need ex ante clearance from a national regulatory authority under the OIR. That does not remove regulator oversight or end-user rights. It changes where the first classification decision is made: the operator defines the service, chooses an IAS or specialised-service structure, and holds the technical record that must support that choice.

BEREC also states that it has seen no concrete evidence that the OIR has impeded implementation of network slicing. That is BEREC’s assessment, not proof that every proposed use case is compliant or that investment uncertainty has disappeared. The current register still labels BoR (26) 84 a draft, so it should not be described as final guidance or law.

The result is a practical test of the service’s evidence trail. A clear quality requirement, a credible comparison with live internet access offers, an ahead-of-demand capacity plan and cell-level observations make the classification legible. A slide showing virtual lanes does not. The line between innovation and circumvention sits in the relationship between the slice and the service users left sharing the physical network.

Sources