Guideline for Packet Shaping

Japan Internet Providers Association (JAIPA)
Telecommunications Carriers Association (TCA)
Telecom Services Association (TELESA)Japan Cable and Telecommunications Association (JCTA)May 2008

Content
1. Background on the Deliberations…………………

1

2. Purpose and Positioning…………………

2

3. Coverage of the Guideline…………………

3

4. Basic Principle of the Guideline…………………

3

5. Relation to “Secrecy of Communications”…………………

5

6. Relation to “Fairness in Use”…………………

11

7. Disclosure of Information…………………

12

8. Issues for Further Consideration…………………

15

9. Review of the Guideline…………………

17

1. Background on the Deliberations(1) Traffic Increase and Packet Shaping
In Japan, broadband including DSL and CATV has become widespread at a rapid pace,
as reflected in the number of broadband subscribers exceeding 28 million, and as
exemplified by the number of subscribers to FTTH services exceeding 11 million as ofthe end of December 2007 (Reference 1). In conjunction with this, Internet traffic iscontinuing to increase year by year (Reference 2) 1 .
On the other hand, given that survey results indicate that approximately 1% of all
Internet users consume approximately 50% of the backbone bandwidth by using
peer-to-peer (P2P) file sharing software 2 (Reference 3), the occupation of network
bandwidth by a few heavy users is deemed to be one of the major reasons to theabove-mentioned rapid traffic increase.
Constant occupation of network bandwidth by heavy users reduces the communication
speed of the entire network, including that for other general users. In order to avert thissituation and ensure the smooth usage of networks by general users, some internet
service providers (hereinafter referred to as “ISPs”), etc. are implementing packet
shaping 3 .
Packet shaping has been deemed reasonable to a certain extent from the viewpoint of
stable network operation in the final report published by the “Working Group on
Network Neutrality” on September 20, 2007. However, depending on how it is operated,
it contains the risk of hindering the use of networks by users, in addition to the risk of
breaching the principle of secrecy of communications under Article 4 of theTelecommunications Business Law (1984 Law No.86, hereinafter referred to as“Business Law”). For this reason, the need for interested parties to establish operation
rules in concrete terms has been pointed out in the above-mentioned final report 4 .
In consideration of these circumstances, four telecommunications carriers organizations,
namely, the Japan Internet Providers Association (JAIPA), the Telecommunications
Carriers Association (TCA), the Telecom Services Association (TELESA) and the Japan1

The total amount of IP traffic in Japan was estimated at 812.9Gbps in Nov 2007, increased by about 2.5
times in 3 years（Efforts for Grasping Current Status of Internet Traffic in Japan , MIC (February 21,2008)).
2
P2P (Peer to Peer) is a communication model in which each computer communicates directly with othercomputers. Such method is used for file sharing, IP telephone, and Contents Delivery Network etc. This
Guideline describes P2P file sharing soft as the scope of packet shaping.
3“Packet shaping” means controlling network traffic by checking applications, services or users andassigning a certain bandwidth or throughput for each of them.
4“To establish a broad-based consensus on packet shaping, it is advisable to seek participation from relating
parties in drawing up the“Guidline for packet shaping”(Report on Network Neutrality P28, MIC)

1

Cable and Telecommunications Association (JCTA), established the “Study Group on
the Guideline for Packet Shaping” in September 2007, and decided to consider thecontent of the “Guideline for Packet Shaping” (hereinafter referred to as “theGuideline”).
(2) Fact-finding Survey on Packet Shaping
In order to investigate the actual state of packet-shaping operations, a questionnaire
survey on packet shaping was conducted in November 2007 (hereinafter referred to as“Results of Questionnaire Survey on Packet Shaping”), targeting primarily attelecommunications carriers who were members of the above-mentioned fourorganizations.
The survey results revealed that among the 280 companies (including 225 ISPs) thatgave valid responses, 69 companies (25%) implemented packet shaping, and 30
companies (11%) were considering implementing packet shaping. As for the method ofpacket shaping, at those 99 companies that either implemented or were considering
implementing packet shaping, 59 companies restricted the traffic of specific applications(including protocols, hereinafter the same), while 13 companies restricted thecommunication bandwidth of users who carry out high-volume transmissions. As
reasons for implementing packet shaping, the majority - i.e., 53 out of 99 companies cited fairness among users and ensuring bandwidth for general users.

2. Purpose and Positioning(1) Purpose
As described in Section 1, packet shaping is one of the methods adopted bytelecommunications carriers to assure the quality of communication services. By
formulating this Guideline, related telecommunications carries shall confirm, as theminimum necessary rule concerning packet shaping operation standards, that packet
shaping is a limited method which is acceptable only in cases where it is deemed
reasonable to a certain extent. Also, the guideline shows the basic framework for thereasonable extent of packet shaping implementation in order to avoid arbitrary
operations.
Accordingly, the Guideline clarifies the relationship between secrecy ofcommunications and fairness in use under the Business Law by citing specificexamples.
Furthermore, it presents the basic framework regarding disclosure of information when2

implementing packet shaping from the viewpoint of facilitating network operation
management among related operators and protecting users.
(2) Legal Characteristics
The Guideline is not an interpretation of judicial precedents or application of laws andregulations by government institutions, but has been voluntarily formulated byorganizations of telecommunications carriers as an action guideline. Therefore, theGuideline is not legally binding, and whether to observe it or not is at the discretion ofindividual telecommunications carriers.
However, if telecommunications carriers implement packet shaping in accordance with
the Guideline, it is expected that even if packet shaping is executed in a manner that
infringes the secrecy of communications in form, it would be judged lawfully justifiable
as an act performed in the pursuit of lawful business.

3. Coverage of the Guideline(1) Entities within the Scope of the Guideline
ISPs, telecommunications carriers providing services relating to internet access(including Cable television broadcasters), which are implementing or considering
implementing packet shaping (hereinafter referred to as “ISPs, etc.”).
(2) Types of Packet Shaping within the Scope of the Guideline
The Guideline covers packet shaping—which restricts the communication bandwidth of
specific applications and specific users—implemented by ISPs, etc. for the purpose of
ensuring the quality of their networks. Specifically, it summarizes the following two
types of packet-shaping methods (Reference 4):(i) Traffic restriction of specific applications (e.g. P2P file sharing software) 5 ; and(ii) Traffic restriction or cancelling the contract of heavy users whose traffic exceed acertain threshold.

4. Basic Principle of the Guideline(1) Basic Concept
Because of the rapid increase in Internet traffic, ISPs, etc. that either already implement
5This includes indirect restriction such as restricting or shutting out the bandwidth of a specific port.

3

or are considering implementing packet shaping are on the increase.
However, it would not be appropriate for ISPs, etc. to easily implement packet shaping
beyond a reasonable threshold for the purpose of averting network congestion when it
should be tackled by enhancing network capacity.
In the first place, ISPs, etc. should tackle the increase in traffic by enhancing its network
capacity. It is important to recognize that packet shaping should be implemented only in
exceptional circumstances, and to share this basic principle as a consensus amongtelecommunication carriers.
(2) Acceptable and Reasonable Extent of Packet Shaping
Having recognized the basic principle described above, the question is: In whatcircumstances is it acceptable to implement packet shaping as an exception?
In general, it should be deemed acceptable to implement packet shaping only in certain
objective circumstances where the traffic of a specific heavy user excessively occupies
the network bandwidth and consequently degrades the service of general users, giving
rise to the need to restrict the traffic of such heavy users or specific applications that areoccupying excessive bandwidth. Thus, when implementing packet shaping, suchcircumstances must be substantiated by objective data.
As it is necessary to determine the exact meaning of “specific heavy users” and“specific applications” on a case-by-case basis, in light of the structure and capacity
status of the network of ISPs, etc., as well as the usage status of other users, it is difficult
to determine a unified concrete definition or criteria under the Guideline. In this context,
individual examples will be presented later in this Guideline to help telecommunications
carriers deepen their understanding on this matter.
Some ISPs, etc. seem to be moving to restrict the use of P2P file sharing software on the
grounds that the use of such software is promoting copyright infringement. However, it
is difficult for ISPs, etc. to determine the illegality of contents on an individual basiswith respect to traffic generated by P2P file sharing software, and it is generally deemed
to be beyond reasonable extents to implement packet shaping uniformly to all users onsuch grounds.
Furthermore, measures against security problems arising from the use of P2P filesharing software should be taken for the purpose of protecting the users themselves in
the first place, and should not be deemed to be taken with respect to all users. Therefore,in such cases, it is deemed appropriate to take such measures in the form of an optional
service provided in response to users’ requests, by obtaining users’ indivisual consent.

4

5. Relation to “Secrecy of Communications” (Article 4, Business Law)
When implementing packet shaping, many telecommunications carriers are adoptingmeans that determine the type of applications such as P2P file sharing software or identify
users by analyzing header information and payload information of packets. This situation
gives rise to the need to conduct studies in relation to secrecy of communications underthe Business Law. The Guideline provides a summary regarding what ISPs, etc. need to
study in relation to secrecy of communications when implementing packet shaping.
Whether or not the implementation of packet shaping infringes secrecy of communications
will be determined in accordance with the flow referred to in Reference 5. A study will be
conducted in each of the following steps.
(1) Definition of “Secrecy of Communications”
The Business Law provides for the protection of secrecy of communications handled bytelecommunications carriers (paragraph 1, Article 4 of the Business Law), under theprovision of paragraph 2, Article 21 of the Japanese Constitution (protection of secrecyof communications) 6 .
Penal provisions are applied in the event of the infringement of secrecy ofcommunications, and the punishment is heavier if a telecommunications carrier
infringes the secrecy of communications (Article 179 of the Business Law) 7 .
Furthermore, if the method of conducting business by a telecommunications carrier isdeemed to hinder the securement of secrecy of communications, a business
improvement order is issued by the Minister for Internal Affairs and Communications(subparagraph 1, paragraph 1, Article 29 of the Business Law) 8 .
6

Furthermore, Article4.(2) obliges heavier duty of secrecy of communications to the person engaged in thet elecomunications business in order to maintain reliance of the users regarding telecommunication
business.
7
Article 179.
(1) Any person who has violated the secrecyof communications being handled by a telecommunications
carrier (includingcommunications stipulated in Article 164 paragraph (2)) shall be guiltyof an offense
and liable to penal servitude for a term not exceeding twoyears or to a fine not exceeding one million
yen.
(2) Any person who engages in the telecommunicationsbusiness and has committed the act of thepreceding paragraph shall beguilty of an offense and liable to penal servitude for a term notexceeding three years or to a fine not exceeding two million yen.
(3) An attempted offense of the preceding twoparagraphs shall be punished.
8
Article 29.
(1) The Minister may, if it is deemed that business activities of a telecommunications carrier fall under
any of the following items, insofar as necessary toensure the users' benefit or the public interest,
order said telecommunications carrier to take actions to improve operations methods or othermeasures:i) When there is hindrance in ensuring secrecy of communications with respect to the operations
methods of the telecommunications carrier

5Telecommunications Business Law(Protection of Secrecy)
Article 4.
(1) The secrecy of communications being handled by a telecommunications carrier
shall not be violated.
(2) Any person engaged in the telecommunications business shall, while in office,maintain the secrets of others that have come to be known with respect tocommunications being handled by the telecommunications carrier. The same shallapply even after this person's retirement from office.
The scope of secrecy of communications is broad in that it includes the communicatedcontent in individual communications, the name of the parties, transmission location,communication date/time, communications traffic, header information and other suchcomponent regarding indivisual communications, the fact of the communication’s
existence, communication counts, etc. Furthermore, acts of infringement of secrecy ofcommunications include attempts by anyone other than the parties to the communication
to proactively and intentionally gain knowledge of matters that fall under secrecy ofcommunications, and the use of such matters in his/her own interest or another person’sinterest against the will of the parties to the communication.
Accordingly, as exemplified by cases in which an ISP, etc. implement packet shaping bydetecting the packet patterns unique to a specific P2P file share software, the act ofchecking the header and payload information of packets passing its network, the act ofdetecting packets associated with specific applications, and the act of restricting the
distribution of such packets based on the findings 9 , all correspond to an act of
infringement of secrecy of communications.
Also, the act of detecting the traffic volume of users and restricting the distribution of
packets of specific heavy users performed by ISPs, etc. all correspond to an act of
infringement of secrecy of communications, as they involve identifying thecommunications traffic of individual communications and implementing packet shaping
based on the identified traffic.
In this context, according to the "Results of Questionnaire Survey on Packet Shaping” ,some telecommunications carriers responded that in cases where packet shaping
equipment is employed, since the equipment simply executes packet detection andii)～xii) abbr.
Deep packet inspection method. As well, there are methods for restricting traffic of specific applications
called flow state control method which judges applications statistically from the flow of the traffic.

96

packet shaping without any checking by humans, it would not correspond to an act of
infringement of secrecy of communications 10 . However, even if the packet shaping
equipment is set to work automatically, since the ISPs, etc. implement packet shaping byusing information subject to secrecy of communications, it does not necessarily meanthat it does not correspond to an act of infringement of secrecy of communications hence, caution must be exercised in this regard.
(2) Consent of Users
As the implementation of packet shaping corresponds to an act of infringement ofsecrecy of communications, it is generally impermissible to implement packet shaping
without obtaining the clear and indivusual consent of the parties to communication.
In this context, caution needs to be exercised in that the clear and indivudual consent of
the parties cannot be deemed to have been obtained, simply by establishing provisions
in tariffs about giving consent to packet shaping or publishing them on the website.
In order for such consent to be deemed to have been given, examples of possible
methods include establishing provisions about giving consent to packet shaping in thecontract and explicitly confirming such provisions when a new user concludes thecontract, sending an email individually to existing users and receiving their response
about giving consent to packet shaping.
(3) Lawful Justification (Act performed in the pursuit of lawful business)
On the other hand, it is permissible to implement packet shaping regardless of whether
or not consent has been obtained from the parties, if there are lawfully justifiablereasons for doing so. Measures taken by telecommunications carriers against increase intraffic can be divided into emergency measures and normal measures. At times of
emergency, infringement of secrecy of communications under the Business Law islawfully justified 11 in cases where self-defense referred to in Article 36 of the Penal
Code (Act No.45 of 1907) and averting present danger referred to in Article 37 of thePenal Code are valid, whereas at normal times, it is lawfully justified in cases where it
corresponds to an act performed in the pursuit of lawful business referred to in Article
35 of the Penal Code.
As the Guideline covers packet shaping implemented at normal times, this Guideline
summarizes cases in which acts are deemed to correspond to acts performed in the10

19 companies answered that restricting communications based on specific applications by equipment does
not correspond to an act of infringement of secrecy of communications unless they check the traffic byhuman.
11
For example, packet shaping may be allowed as an “Averting present Danger (Penal Code Article 37)”
if burst traffic of some heavy users degrade communication speed on other users.

7

pursuit of lawful business.
a) Approach to acts performed in the pursuit of lawful business
Penal Code
(Justifiable Acts)
Article 35.
An act performed in accordance with laws and regulations or in the pursuit oflawful business is not punishable.
In order for the implementation of packet shaping to be regarded as an act
performed in the pursuit of lawful business by ISPs, etc., it is generally deemednecessary to fulfill such requirements as: (i) the purpose of implementing packet
shaping is legitimate in light of the nature of the business of ISPs, etc. (legitimacyof purpose); (ii) there is a need to implement packet shaping for such purpose(necessity of action); and (iii) the packet shaping method, etc. is valid (validity ofmeans).
b) Study of specific examples(i) Cases in which traffic of specific applications is to be restricted● Cases in which the traffic of a specific P2P file sharing software is degradingor has an high probability of degrading the quality of service of otherapplications, by excessively occupying network bandwidth; therefore, traffic
based on such applications is to be identified and restricted by employing
packet-shaping equipment (refer to Reference 4: Application Control
Method).
➣ Legitimacy of purpose and necessity of action
In cases where there are objective circumstances in which communication
involving the use of a specific P2P file sharing software is excessively andcontinuously occupying network bandwidth and is thereby degrading or has anhigh probability of degrading speed and quality of service associated with otherapplications, such as causing delays in the display of web pages andtransmission/reception of email, it is generally deemed acceptable in terms oflegitimacy of purpose and necessity of action, to implement packet shaping inorder to pursue stable network operation based on appropriate traffic management8and assure quality of service for other users.
➣ Validity of means
It is also generally deemed acceptable in terms of validity of means to implement
packet shaping as it is limited to applications with particularly high traffic aimed
at fulfilling the aforementioned purpose.
Therefore, if packet shaping is implemented in such a manner to the extent
necessary based on objective data, there is a high possibility that it will generally be
regarded as an act performed in the pursuit of lawful business.
● Cases in which the existence and extent of restrictions of traffic generated by
P2P file sharing software vary with the type of application
Such cases can basically be addressed in the same manner as in the example above.
In other words, it is deemed acceptable to vary the treatment with the type of
application in cases where there are objective circumstances in which the traffic of a
specific P2P file sharing software application is excessively and continuously
occupying network bandwidth compared to other applications, and is thereby
degrading or has a high probability of degrading the communication services forother users.
● Cases in which the traffic of a specific P2P file sharing software is degradingor has an high probability of degrading the quality of service of otherapplications, by excessively occupying network bandwidth; therefore, trafficof such P2P file sharing software is to be identified and to be shut out by
employing packet-shaping equipment
With respect to the above example, completely shutting out the traffic ofapplications with particularly high traffic volume is deemed invalid as a means at
normal times, considering that it is possible to resort to more moderate methods
such as restricting the communication of such applications at a certain volume.
Therefore, it is generally difficult to accept shutting out the traffic of specificapplications including P2P file sharing software as an act performed in the pursuitof lawful business. If packet shaping is to be implemented in such a manner, it isnecessary to obtain the consent of the parties to communication.
(ii) Cases in which use of bandwidth by specific users is to be restricted9● Cases in which the shortage of network bandwidth is degrading or has a highprobability of degrading the use of communication services by general users;
therefore, the traffic volume of individual users is to be detected for the
purpose of restricting the use of communication bandwidth by heavy users
or warning them against exceeding a certain thresholdIn cases where there are objective circumstances in which the shortage of network
bandwidth is degrading or has an extremely high likelihood of degrading thequality of service for general users, possibly due to the large volume of traffic
generated by specific users, it is generally deemed acceptable in terms oflegitimacy of purpose, necessity of action and validity of means, to detect thetraffic volume of individual users in pursuit of stable network operation based on
appropriate traffic management.
● Cases in which the traffic generated/received by specific heavy users isexcessively occupying network bandwidth and is thereby degrading or has ahigh probability of degrading usage by other users; therefore, the traffic ofsuch heavy users is to be restricted by employing packet-shaping equipment(Refer to Reference 4: Total Volume Control Method).
➣ Legitimacy of purpose and necessity of action
In cases where there are objective circumstances in which a large volume oftraffic generated by a small number of specific heavy users is excessively
occupying network bandwidth over a certain period of time and is thereby
degrading or has an extremely high likelihood of degrading quality of service forother general users, it is deemed acceptable in terms of legitimacy of purpose andnecessity of action, to restrict the traffic of such users in order to pursue stablenetwork operation based on appropriate traffic management and to assure qualityof service for other users.
➣ Validity of means
To the extent that excessive usage by a small number of heavy users who generatea large volume of traffic is restricted in order to fulfill the above-mentioned
purpose, the restriction of traffic is also generally deemed acceptable in terms ofvalidity of means.
Therefore, if packet shaping is implemented in such a manner to the extent
10necessary based on objective data, there is a high possibility that it will generally be
regarded as an act performed in the pursuit of lawful business.
Furthermore, ISPs, etc. need to heed the principle shown in 4(1) when
implementing packet shaping, and are required to give careful consideration.

6. Relation to “Fairness in Use” (Article 6, Business Law)
When implementing packet shaping such as restricting the use of bandwidth by specificheavy users, studies must be conducted in relation to the principle of fairness in use underthe Business Law. This Guideline summarizes what kind of rules need to be observed inrelation to fairness in use, when ISPs, etc. implement packet shaping.
(1) Definition of “Fairness in Use”
The Business Law prohibits unjust, discriminatory treatment pursuant to the provisionof paragraph 1, Article 14 of the Japanese Constitution (equality under the law), andstipulates that telecommunications carriers shall not treat specific users in a favorable orunfavorable manner without any valid reasons upon concluding a contract for providing
telecommunication services or upon providing telecommunication services.
When discriminatory treatment is deemed to have been given in breach of the dutyreferred to in the said Article, a business improvement order is issued (subparagraph 2,
paragraph 1, Article 29 of the Business Law) 12 .
Telecommunications Business Law(Fairness in Use)
Article 6.
Any telecommunications carrier shall not discriminate unfairly in providing
telecommunications services.
(2) Study of Specific Examples
12

Article 29.
(1) The Minister may, if it is deemed that business activities of a telecommunicationscarrier fall under
any of the following items, insofar as necessary toensure the users' benefit or the public interest,
order said telecommunicationscarrier to take actions to improve operations methods or othermeasures:i) abbr.
ii) When the telecommunications carrier unfairly discriminates againstspecified personsiii)~ xii) abbr.

11

If traffic of P2P file sharing software, etc. generated/received by specific heavy users
excessively occupies network bandwidth and thereby degrades or has a high probabilityof degrading usage by general users, traffic restriction imposed on such heavy users by
ISPs, etc. by employing packet-shaping equipment is not normally deemed tocorrespond to unjust, discriminatory treatment, provided that objective data of thesituation has been secured and traffic has been reduced to an equivalent level as othergeneral users based on tariffs, etc.
Furthermore, cancellation of the contract with heavy users who continually generate
traffic volume exceeding a certain threshold after giving a warning against such users,
based on the tariffs, etc. is also not normally deemed to correspond to unjust,discriminatory treatment.
In contrast, implementing packet shaping to some heavy users but not to others who
generate similar volumes of traffic or increasing the fees only for specific users would
correspond to unjust, discriminatory treatment, unless there are valid reasons for suchdifferences in treatment.
Furthermore, some content providers have pointed out that there is a possibility ofcommunication delays in content distribution services13 due to the impact of packet
shaping by ISPs, etc.
In this context, giving priority to specific content providers over other providers without
any valid reason, or restricting traffic of specific providers without any valid reason
would correspond to unjust, discriminatory treatment. Considering the fact that ISPs, etc.
are expanding into content business nowadays, it is necessary to bear in mind that suchacts would be problematic in view of ensuring an environment for fair competition.

7. Disclosure of Information(1) Relationship with End Users
According to the “Results of Questionnaire Survey on Packet Shaping”, more than halfof all telecommunications carriers that implement packet shaping widely notified theimplementation of packet shaping to end users, but some telecommunications carriers
failed to do so. The notification methods were mainly tariffs, membership regulations,
website and email. However, the fact is that the notification methods and notified
matters currently seem to vary among telecommunications carriers 14 .
13

Report on Network Neutrality P29, MIC
43 companies in 69 companies notice the implementation of packet shaping to users, but 21 companies
implement packet shaping without notification. In addition, 38 companies describe on the tariffs, but

14

12

If packet shaping is to be implemented by ISPs, etc. in view of user protection, it isimportant that sufficient information on the packet shaping policy is provided to end
users in advance.
a) Matters to be Widely Notified
If packet shaping is to be implemented, ISPs, etc. should provide sufficient
information about their packet shaping policy.
Matters that should be widely notified include in which cases packet shaping is tobe implemented, terms and concrete method of implementing packet shaping (e.g.
the scope of packet shaping such as whether traffic of specific applications is to be
restricted or whether the use of bandwidth by specific heavy users is to be
restricted, and the packet shaping criteria such as restricted applications, traffic
volume, etc. ).
b) Notification Method
In view of clarifying the terms of providing communication services, users should
be provided with an explanation that packet shaping will be implemented at thetime of concluding a contract 15 . Also, the packet shaping policy should be clearly
described in the tariffs. The following is an example of how the packet shaping
policy may be described in concrete terms.
(i) Cases in which traffic of specific applications is to be restricted● The Company may limit speed and traffic of certain communications bydetecting applications which continually occupy bandwidth in large volumes ,and restricting the bandwidth allocated to such applications (such applications
will be prescribed by the Company*).
* Specific applications subject to such restriction are described in the
appendix to tariffs and the website.
(ii) Cases in which use of bandwidth by specific users is to be restricted● The Company may restrict the use of the service if the subscriber continually

generates traffic volume exceeding the threshold prescribed by the
28companies do not.
Article 26 of Business Law requires telecommunication carries to explain to users the conditions regarding
telecommunications services.

15

13

Company* and thereby imposes a huge load on facilities that use the service
or otherwise degrades the use or operation of the service.
* The traffic volume threshold subject to packet shaping is described in the
appendix to tariffs and the website.
Such provisions shall be added to the Model Clauses of Internet Access Service
Tariffs (Alpha version) of the Telecom Services Association (TELESA) in the
future.
In combination with the tariffs, an effective way of making the packet shaping
policy widely known is to publish it on the website. When doing so, however, it isnecessary to post such information at a place that is easily accessible by existing
subscribers as well as users who are contemplating subscribing to the service.
On the other hand, even in cases where the ISP, etc. has widely notified the packet
shaping policy to end users, critics have pointed out that, in cases in which use of
bandwidth by specific users is to be restricted, the scope of packet shaping is
unrecognizable because it is difficult for end users to determine their own traffic
volume. In regard to this, some telecommunications carriers warn heavy users
indivisually in advance of the implementation of packet shaping, and sometelecommunication carriers have launched a service that discloses, to end users,
their own traffic volume. Such efforts may be helpful. Some ISPs also disclose theusage rate of their backbone bandwidth, and the proactive disclosure of information
to end users in such a manner would be useful in improving the objectivity of
packet shaping.
(2) Relationship with Non-end-users
Considering that there is a possibility that the implementation of packet shaping by acertain ISP, etc. might affect not only its end users but also communication between
such end users and subscribers to other ISPs, content distribution by content providers,etc., information on the implementation of packet shaping is important not only for suchend users but for all internet users.
In this context, ISPs, etc. implementing packet shaping should at least provide
information as broadly as the information provide to end users by publishing it on its
tariffs and websites.
(3) Relationship with Other ISPs
If the packet shaping policy varies among telecommunications carriers, the policy of14

one telecommunications carrier would affect the network operations of other carriers
that are connected. In other words, communication between users who subscribe to thesame ISP is basically restricted uniformly based on its ISP’s policy. In contrast,
communication between users subscribing to lower-level ISPs subject to transit androaming, is affected by the higher-level ISP’s policy. Furthermore, communication via
networks such as IX is affected by the policy of the connected ISP (Reference 6).
Taking such circumstances into account, in the “Results of Questionnaire Survey on
Packet Shaping” , many telecommunications carriers responded that if the ISPs to which
they are connected is implementing packet shaping, they wish such information to beprovided 16 .
In this regard, if, for example, a higher-level ISP is implementing packet shaping, itshould provide necessary information to lower-level ISPs from the viewpoint of smooth
network operation and user protection. Specifically, as in the case of higher-level ISPs
and lower-level ISPs, telecommunications carriers that have a contractual relationshipbased on transit or roaming may address the existence of packet shaping and the exact
method of packet shaping in the context of their contractual relationship. On the other
hand, telecommunication carriers with no contractual relationship such as thoseconnected via peering and IX, should at least provide information to ISPs similar to theinformation provided to end users by publishing it in its tariffs and websites.

8. Issues for Further Consideration(1) Increase in Video Content
The use of rich content is rapidly increasing nowadays, as exemplified by video sharing
services and video distribution services 17 . Since the increase in such video traffic mightlead to the shortage of network bandwidth, it is necessary to conduct studies on how
related telecommunications carriers should deal with such traffic 18 .
(2) Impact of Implementation of Packet Shaping on Access Networks
While this issue is outside the scope of the Guideline, there is a possibility that packet
16

According to “Results of Questionnaire Survey on Packet Shaping”, among 66 companies that gave valid
responses, 23 companies responded that information regarding packet shaping should be disclosed.
17
The traffic flowing into domestic ISPs from foreign ISPs has been remarkably increasing by twice in 1.5
year. The download of video contents from foreign servers by domestic users is deemed to be the major
reason. (“Efforts for Grasping Current Status of Internet Traffic in Japan” Febuary 21 2008, MIC).
18
In Febuary 26 2008, Google, KDDI and telecommunications carrries of Asian countries concluded an
partnership agreement to construct an undersea cable network between Japan and the United States. Such
network will ease the shortage of network relating to video contents.

15

shaping might be implemented in subscriber access networks for the purpose of
securing specific bandwidth.
If packet shaping is implemented in the access network, traffic restriction imposed on IP
protocols as a whole would seem like nothing but the network’s physical speed limit
from the viewpoint of both end users and ISPs. Moreover, there is a risk thatfact-finding might become difficult in cases where packet shaping is implemented onlywith respect to specific applications 19 . Hence, such forms of packet shaping should bestudied due to necessity.
(3) Information Sharing System among Relevant Players
In formulating the Guideline, the Study Group conducted studies primarily on the wholeconcept of disclosure of information to end users from the viewpoint of user protection,
and arrived at a certain policy direction.
On the other hand, further studies need to be conducted in regard to whether more
information should be provided to content providers and other ISPs than what isprovided to end users, in consideration of how packet shaping is actually implemented
and the requests from related telecommunications carriers in the future.
Furthermore, although P2P communications is leading to increased traffic in certain
aspects, on the other hand, new services using P2P technology are also emerging,raising expectations for improved efficiency of content distribution. From such a pointof view, it is necessary to conduct studies on the relationship between new services thatare deemed to help utilize networks efficiently by effectively taking advantage of P2Ptechnology and packet shaping implemented by ISPs, etc.
(4) Situation in Other Countries
In the United States, disputes over network neutrality are exemplified by the problem ofports used by VoIP being blocked by Madison River Communications Corp., an ISP 20 .
Recently, the U.S. Federal Communications Commission (FCC) launched aninvestigation in response to complaints that Comcast Corp. had been slowing downsome P2P communication by BitTorrent, etc. Similarly, in Europe, P2P traffic seems to
be occupying network bandwidth, but the countermeasures taken by ISPs, etc. have not

19

For example, in cases where applications measuring the speed is not restricted but P2P file sharing
software is restricted, it will be difficult to judge whether the reason of delay in service is due to packet
shaping or to conditions of the computer.
20
In February 2005, Madison River Communications Corp blocked the ports used by VoIP, which shuttedout the services of VoIP operater Bonage. Due to the decision of the FCC, Madison River Communications
Corp stopped blocking the ports in March 2005.

16

been identified 21 .
The whole concept of packet shaping in Japan needs to be reviewed as necessary while
identifying such trends.
(5) Cost Sharing Model
There will still be challenges even if packet shaping is implemented according to the
Guideline, such as the issue of fairness of cost burden among ISPs and the imposition of
additional charges on heavy users. In this regard, it is necessary to conduct studies once
again focusing on the relationship between the basic principle of best efforts and thebeneficiary-payment principle, and summarize the agendas, etc.

9. Review of the Guideline
As the market environment for telecommunications services and the structure of networks
are expected to continue changing dramatically in the future, it is necessary to review thecontent of the Guideline periodically.

21

Refer to the results of a survey implemented by Ipoque GmbH
(Germany). http://www.ipoque.com/media/news/ipoque_internet_study_2007_p2p_file_sharing_still_domin
ates_the_worldwide_internet.html

17

Transition in the Number of Japan’s Broadband Subscribers (Reference 1)（Unit: 10 thousand）

1,600

Number of Broadband Service Users（As of Dec.2007）

ＤＳＬ:13,133,113

1,400
1,200
1,000

FTTH:11,328,952

800
600

CATV:3,827,502

400

ＦＷＡ :
12,585200
0Number of Telecommunication Service Users（As of Dec.2007）
12,000（Unit: 10 thousand）

9,147

10,0008,665

MobileCommunications(telephony)

8,000

5,636 5,781
6,000

5,907

6,263 6,285

5,245 5,456

6,263

4,731

6,223 6,678

6,133

7,482
6,077 6,022

10,429 10,530

9,361

8,112

6,028 6,164

9,869

9,648

10,1705,961

5,917 5,805

5,678 5,517

6,196

5,333

5,685

5,240

Fixed Communications(telephony)

3,825
4,000

Broadband service
2,691

1,495 1,956

1,170

2,000

49

87

138

171

213

943

433
22

85

'90/3

'91/3

'92/3 '93/3'94/3'95/3 '96/3'97/3 '98/3'99/3'00/3 '01/3

977

387

0

'02/3

2,143 2,330

528

831

'03/3 '04/3

'05/3

1,146

2,504

2,644

1,300 1,433

2,776 2,830
1,677
1,595

IP Telephony'05/9 '06/3'06/9 '07/3'07/9 '07/12

1

IP Traffic on the Networks (Total Volume)(Reference 2)○ The total amount of IP traffic in Japan was estimated at 812.9Gbps in Nov 2007,
increased by about 2.5 times in 3 years.
[Gbps]

Estimated download
traffic of broadband
users in Japan

Monthly average ofdaily traffic ofBroadband customers(ADSL/CATV/FTTH) ofmajor ISPs in Japan(ref.1) Monthly
average of daily peaktraffic exchanged atmajor IXs in Japan(ref.2) Monthly
average of daily
traffic exchanged atmajor IXs in Japan

Efforts for Grasping Current Status of Internet Traffic in Japan ,MIC

2

Bandwidth Usage and P2P Users
10% of all users occupy 60 through 90% of the traffic
Traffic
volume(Reference 3)Distribution of uses in all traffic

75%
P2P traffic

25%
Other traffic(more than 90% of all users)(less than 10% of all users)

P2P users (10%) controls 60 through 90% of the traffic.

63%
Heavy users(10% of P2P users)

37%
average users(90% of P2P users)

User (ascending sort )Top 10% of P2P users(*) occupy more than 60% of the traffic

Bandwidth used by heavy users completely
differs from that used by average users.

Traffic
volumeaverage user : 550Mbyte
Top 10% among P2P users occupy over 60% of
the traffic

x 30

x 190

P2P user : 17Gbyte

P2P heavy users: 104Gbyte
P2P User (ascending sort )(*) “the P2P users” are considered as the users whose P2P traffic exceeds over 1
Mbyte within 24 hrs.

3

Packet Shaping Methods(Reference 4)

Applications Control Method（１）Restriction utilizing packet shaping equipment
 Traffic restriction of specific applications by checking the flow or the behavior of the applications.
Specific application occupies
the network bandwidth

Restricting the traffic of specificapplications by checking
applications

The target
application

P2P traffic A

P2P traffic A

P2P traffic B
HTTP traffic
FTP traffic

P2P traffic B
HTTP traffic
FTP traffic

Vacant Bandwidth
PacketShaping
Equipment（２）Port Restriction
 Traffic restriction of specific application by restricting or blocking the bandwidth of specific port.
Restricting the traffic of specificapplications by checking the port

The target
port
Port No. A

Port No. A

Port No. B
Port No. C
Port No. D

Port No. C
Port No. D

Port NO. B

Vacant Bandwidth

Routers

Total Volume Control Method
 Traffic restriction of heavy users whose traffic exceed a certain threshold.
Specific users occupies
the network bandwidth

Restricting the traffic of heavy
users by detecting individualusers

The traffic of thetarget users

Heavy users traffic

Heavy users
traffic

PacketShaping

Ordinary users traffic
Ordinary users traffic

Ordinary users traffic
Ordinary users traffic

Equipment

Vacant Bandwidth4

Flow of “Secrecy of Communications”(Reference 5)(Article 4, Telecommunications Business Law)
＜First Step＞
Does the action infringe“Secrecy of Communications”
in form ?

No
LawfulYes＜Second Step＞
Is there a clear and individual
consent of the parties ofcommunications?

Yes
LawfulNo＜Third Step＞
Is the action performed in the
pursuit of lawful business(Article 35, Penal Code)?

Yes
Lawful※Due to Lawful Justification

No
Infringe of“Secrecy of Communications”(Illegal)5Effects of Packet Shaping to Other ISPs

① Communication between users

IX

under the same ISP is restricted
uniformly based on the policy of
the ISP concerned.

ｔｈｅ Ｉｎｔｅｒｎｅｔ②② Communication via the IX is

ISP-B (Tier 1)③
ISP-A (Tier 1)(Reference 6)

effected by the operation policyof the connected ISP.

④

③ Communication between users

under the same ISP is effected by
the higher-level ISP.

ISP-D (Tier 2)①④ Communication between ISPs

which are not connected via
peering may be effected by thehigher-level ISP.

ISP-C (Tier 2)

Local
telecommunication
carrier

User
A

User
B

Local telecommunication carrier

In cases of ②～④, users cannot
acknowledge the effect of ISP-B’straffic shaping.
User
C

User
D

User
E

6