I. Regulatory Framework

1. Regulation (EU) no. 2015/2120 of the European Parliament and of the Council of 25 November 20151 ("TSM Regulation") establishes common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services ("IAS") and related end-users’ rights, seeking to protect end-users and simultaneously to guarantee the continued functioning of the internet ecosystem as an engine of innovation.

2. The TSM Regulation also makes it incumbent upon the Body of European Regulators for Electronic Communications ("BEREC") to issue guidelines for the implementation of the obligations of national regulatory authorities ("NRA") which stem from this Regulation. In this context, on 30 August 2016, BEREC approved and published the document "BEREC Guidelines on the implementation by National Regulators of European Net Neutrality Rules”2 ("Net Neutrality Guidelines"). The aim of these guidelines is to contribute to the consistent application of the TSM Regulation in the European Union (EU), thereby contributing to the establishment of a framework of regulatory certainty for market agents.

3. Article 3 of the TSM Regulation sets out that "end-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service" (see paragraph 1), whereas any agreements between providers of internet access services (IAS providers) and end-users shall not limit the exercise of such rights (see paragraph 2).

4. In this respect, "Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used", although this does not prevent implementation of reasonable traffic management measures (see paragraph 3 of the same legal article).

5. According to Article 5 (1) of the TSM Regulation, national regulatory authorities shall closely monitor and ensure compliance with Articles 3 and 4, and shall promote the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. The same article sets out that national regulatory authorities shall publish reports on an annual basis regarding their monitoring with regard to the provisions of articles 3 and 4 and respective findings, and provide those reports to the Commission and to BEREC. According to the Net Neutrality Guidelines, the first of these reports shall cover the period between 30 April 2016 and 30 April 2017, and be published no later than 20 June 2017,

6. Accordingly, by determination of 29 June 2017, ANACOM's Board of Directors approved the report on the application of articles 3 and 4 of the TSM Regulation3 ("Annual Report"). Without prejudice to its conclusions which have not, as yet, indicated the existence of situations of non-compliance with the obligations arising from the TSM Regulation, in particular those provided for in Article 3, from the outset, it was noted that it would be necessary to examine some of the commercial practices adopted by the IAS providers in more detail, in particular but not exclusively those relating to zero-rating, in order to assess their compatibility with the legal regime.

7. In addition to safeguarding the principle of net neutrality, the TSM Regulation introduces a "fundamental change in approach" for international roaming services by amending Regulation (EU) no. 531/2012 of the European Parliament and of the Council of 13 June 2012 ("Roaming Regulation"), laying down a set of rules underlying application of the "Roam Like at Home" principle (RLAH - application of the same tariffs abroad as in the country of origin). The TSM Regulation sets out the incorporation of "Union-wide roaming as an integral part of domestic tariff plans offered in the various domestic markets." (Recital 25) and establishes "(...) a new retail pricing mechanism for Union-wide regulated roaming services in order to abolish retail roaming surcharges (...)" (see Article 1).

8. Article 6a of the Roaming Regulation stipulates that "(...) roaming providers shall not levy any surcharge in addition to the domestic retail price on roaming customers in any Member State for any regulated roaming calls made or received, for any regulated roaming SMS messages sent and for any regulated data roaming services used, including MMS messages, nor any general charge to enable the terminal equipment or service to be used abroad".

9. The Roaming Regulation does, however, allow IAS providers to apply "(...) a ‘fair use policy’ to the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in order to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers” (Article 6b (1)).

10. Commission Implementing Regulation (EU) 2016/2286 of 15 December 20164 ("Implementing Regulation (EU) 2016/2286"), approved in accordance with Article 6d of the Roaming Regulation, additionally sets out that:

a. "With the abolition of retail roaming surcharges in the Union, the same tariff conditions apply for the use of mobile services while roaming abroad in the Union and at home (i.e. in the country of the mobile subscription of the customer) (...)" (Recital 5);

b. "Any fair use policy applied by a roaming provider in order to prevent abusive or anomalous usage of regulated retail roaming services shall be subject to the conditions set out in Articles 4 and 5 [of the same Implementing Regulation] and shall ensure that all such roaming customers have access to regulated retail roaming services at domestic price during such periodic travel in the Union under the same conditions as if such services were consumed domestically." (article 3), whereas “(…) the roaming provider should as a general rule not impose a limit on the volumes of mobile services available to the roaming customer other than the domestic limit, when that customer is periodically travelling in the Union (...).” (Recital 12);

c. "Without prejudice to any applicable domestic volume limit, in the case of an open data bundle, the roaming customer shall be able to consume when periodically travelling in the Union a volume of data roaming retail services at the domestic retail price equivalent to at least twice the volume obtained by dividing the overall domestic retail price of that open data bundle, excluding VAT, corresponding to the entire billing period by the regulated maximum wholesale roaming charge referred to in Article 12 of Regulation (EU) No 531/2012";

d. "In the case of pre-paid tariff plans, as an alternative to the fair use policy requirement in paragraph 1, the roaming provider may limit the consumption of data roaming retail services within the Union at the domestic retail price to volumes equivalent to at least the volume obtained by dividing the overall amount, excluding VAT, of the remaining credit available and already paid by the customer to the provider, at the moment of commencing roaming, by the regulated maximum wholesale roaming charge referred to in Article 12 of Regulation (EU) No 531/2012."

11. This document contains an analysis of some of the commercial practices adopted by IAS providers in mobile Internet access related to zero-rating and similar practices, and sets out ANACOM's position on the compatibility of these practices with the TSM Regulation as well as with the Roaming Regulation and Implementing Regulation (EU) 2016/2286, in exercise of the powers and responsibilities provided for under these Regulations.

1 Regulation which lays down measures concerning open internet access and amends Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and amending Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union. Available at Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25.11.2015https://www.anacom.pt/render.jsp?contentId=1373317.
2 Document BoR (16) 127 of 30 August 2016, available at BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Ruleshttp://berec.europa.eu/eng/document_register/subject_matter/berec/regulatory_best_practices/guidelines/6160-berec-guidelines-on-the-implementation-by-national-regulators-of-european-net-neutrality-rules.
3 Available at Report on the application of articles 3 and 4 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 (April 2016 - April 2017)https://www.anacom.pt/render.jsp?contentId=1414213.
4 Regulation laying down detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment. Available at Commission Implementing Regulation (EU) 2016/2286, of 15.12.2016http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.344.01.0046.01.ENG&toc=OJ:L:2016:344:TOC.