II. ''Unlimited'' offers

In the light of the above, two situations should be distinguished, in the scope of restrictive measures allowed by law:

• either offers provided by service providers are presented as being subject to traffic/calls/SMS limits and, in this case, it is permissible to restrict or limit traffic or the use of the service whenever the contracted capacity, meaning the traffic volume or maximum amount of calls or SMS, is reached;
• or offers provided are made known as “unlimited traffic/calls/SMS” and, in this case, it is hard to conceive that any restrictions are allowed.

“Unlimited”¹ means “without limits”, “without restrictions”, “infinite”, “absolute”, and it is a term that leaves no doubt to a standard user as to its meaning and scope.

As such, to admit that companies may simultaneously qualify and publicize an offer as “unlimited”, or “with unlimited traffic”, or by another term that leads users to reach the same conclusion as to its meaning, and in the contract or elsewhere, to provide for restrictions to that offer, seems to be paradoxical and misleading, being contrary to the requirements of transparency and appropriateness of information to be provided to the public in compliance with paragraphs 1 and 2 of article 47 of ECL.

In another perspective, it is likely that when internet access providers make available “unlimited traffic” offers, their network is adapted so as to allow the speed to be maintained, under normal circumstances, irrespective of the traffic volume, without overfilling capacity in the respective network links. This is true also for unlimited offers of other communication services. As such, the constraining of traffic or of the use of the services, although admissible in specific situations - as when the number of users competing for the same network resources is exceptionally higher than planned - may not be admitted as a rule or common practise.

In fact, under ECL, it is admitted that in exceptional circumstances, and to avoid overfilling a network link, procedures are adopted to shape traffic. In these cases, companies may apply restrictive measures that are necessary and appropriate to react to these situations, so as to manage the volume of joint traffic of different users competing for the same resources, allowing their access to congested resources to an equal degree. However, these measures must have a nature of contingency and must cease as soon as the situation that determined them is over.

As such, taking into account the demands of adequacy and transparency that govern the provision of information on standard terms and conditions, in respect of access to and use of services, this Authority takes the view that:

a) The term “unlimited” used to designate, announce and characterize several offers, namely those provided by providers of access to internet and telephone services (including calls and/or messages) must have the meaning given by a standard user, that is “without limits” or “without restrictions”;

b) The provision of services where their use is constrained beyond situations justified by exceptional circumstances, so as to avoid overfilling a network link, under ECL, must not be made known as “unlimited traffic offer”, “ unlimited calls/SMS offer” or by any other term likely to mislead users into the same conclusion as regards their meaning, such as “without limits”, “without restrictions” (as to the classification of offers), “infinite” or “absolute” (as to the classification of traffic/calls/SMS);

c) Restrictive measures applied in situations justified by exceptional circumstances must be:

• Adequate and proportional to the objective pursued, both as regards the measure on its own, and the respective duration, and normal conditions must be resumed as soon as the exceptional situation or circumstance is over;
• Equitable, in the way different users with the same tariff/package are treated;

d) “Fair Use Policies”/ “Acceptable Use Policies”, where they exist, must be included in offer conditions of companies, namely, in the scope of the disclosure in the respective websites, in pages where information on tariffs and features is provided in a clear and transparent manner and, in the scope of “unlimited traffic offers”, only the framework referred to in b) and c) is allowed, and applicable restrictions must be duly specified.