138. Whereas:
a. In accordance with Article 3(2) of the TSM Regulation, 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 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;
b. In accordance with Article 3(3) of the same Regulation, when providing Internet access services, 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, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in clearly identified situations;
c. According to Article 6a of the Roaming Regulation, the tariff regime applied in roaming should be the same as that applied in the domestic market, in order to guarantee the Roam Like at Home principle underlying roaming services;
d. A survey was made, although not exhaustive, of the offers made available by the main providers of internet access services in mobile Internet access, specifically those which, in addition to including a general data allowance for traffic in general, also include specific data allowances or do not include any traffic limits for certain applications or content (zero-rating applications or content);
e. It has been found that in some of these offers (under the terms detailed above), the treatment given to the traffic associated with the applications/content included in specific data allowances or applications/content not subject to any traffic limit is different from the treatment given to general traffic which is covered by general data allowances, resulting in situations in which the provider of internet access services, on its own initiative or at the request of the customer, blocks the traffic of all applications/contents after the general allowance has been depleted, except for the traffic associated with applications/content covered by the specific allowance or not subject to traffic limits;
f. The situation referred to in the preceding paragraph constitutes a breach of the TSM Regulation, in particular Article 3(3);
g. Compliance with the regime laid down in the TSM Regulation and respect for the expectation of users that they will be able to make full use of all the traffic allowances that they have contracted (general or specific) can be reconciled, particularly in situations where providers of internet access services choose not to block any or slow down any IAS traffic when the general traffic limit is exceeded, as already happens in the case of several offers, where the customer is still able to use their Internet access for a daily charge (or possibly a charge per MB or per GB) - in such cases the customer may also continue to use any specific allowances they have contracted or which are made available in respect of zero-rating applications or content - or in situations where, when the general traffic allowance is blocked, the specific allowance may be used to access any application/content, even outside the original scope covered by that allowance;
h. It has been found that, in the case of some offers with specific data allowances, the volume of data contained in these allowances is several times higher than the volume of data which forms part of the general data allowance of the offer – this is a situation which is of greater concern in offers where general data allowances are very low, since they may be insufficient to allow full access to the Internet;
i. It has been found that some offers integrate specific data allowances (included or not in the tariff of the mobile service contracted by the customer) or zero-rated applications that include the condition that "traffic … is valid in the Portuguese territory", where by the use of such applications is prevented in roaming in the EEA under conditions equivalent to those applicable in Portugal, which is not compatible with Article 6a of the Roaming Regulation;
j. The other aspects analysed in this document, related to the commercial conditions of the IAS, with respect specifically to zero-rated or similar applications/content, refer to matters that ANACOM will continue to monitor, but where there is no justification for any intervention by ANACOM;
k. The present analysis does not exhaust all the issues associated with net neutrality and international roaming that are susceptible to monitoring and oversight by ANACOM;
The Board of Directors of ANACOM, taking into account the reasons explained in the sections above and as better explained in the remainder of the document, which precedes them, pursuant to the powers established in point a) and h) of paragraph 1 of Article 8 of ANACOM's Statutes (approved by Decree-Law no. 39/2015 of 16 March), in the exercise of the powers provided for in points a), g) and n), all of paragraph 1, as well as point b) of paragraph 2 of article 9, and pursuant to point q) of paragraph 1 of Article 26 of the same Statutes, Article 5(1) of the TSM Regulation and Article 16(1) of the Roaming Regulation, determines:
i. To order modification, within a period not exceeding 40 working days, of the procedures adopted in offers which include the mobile IAS (including, Internet services provided over mobile phones), where applicable, in particular in the offers identified above, specifically as regards the treatment of traffic, in cases where there has been differential treatment, subsequent to depletion of general data allowances, between traffic associated with applications/content included in specific data allowance or made available without traffic limits and traffic associated with other applications/contents included in general data allowances, as well as in any other offers not identified in the present analysis but where the same type of practices are applied, in order to ensure compliance with the TSM Regulation (Article 3(3)), in particular by avoiding discrimination between content and/or applications covered by general data allowances, where made subject to blocking or delays upon depletion of these allowances, and content and/or applications covered by specific data allowances or not subject to data traffic limits, as not subject to any block or delay when the overall data cap is reached.
ii. To order modification, within a period not exceeding 40 working days, of the procedures adopted in offers which include the mobile IAS (including, Internet services provided over mobile phones), where applicable, in particular in the offers identified above, where there are applications/content subject to conditions in roaming in the EEA which are not equivalent to those provided in the Portuguese territory (which means that the conditions applied in roaming are not the same), as well as in any other offers not identified in the present analysis, but where the same type of practices exist, in order to ensure their compliance with the Roaming Regulation. In this context, providers of internet access services which make offers available with zero-rated applications and/or offers of add-on data allowances (whether or not included in the price of the contracted IAS tariff ) for access to specific applications, are to guarantee compliance with RLAH rules, ensuring, in particular, that their customers, when roaming in the EEA, are able to use these zero-rated applications or applications with specific traffic limits under the same conditions as applied to their use domestically. To this purpose, providers of internet access services may, in the event that these add-ons fall within the definition of open data bundles, as is deemed to be the case in many of the referenced situations, apply, instead of each specific application data limit included in the offer, a fair use policy which also applies specifically to use of the applications in question in roaming in the EEA. In the case of offers which include zero-rated applications, customers must also be able to use this zero-rated traffic free of charge while roaming in the EEA; however, if the tariffs they subscribe to can be classified as open data bundles, a specific fair use policy governing the free use of these applications in roaming applies.
iii. To order adaptation of information disclosed on websites and at points of sale accordingly, as regards the conditions governing the offer and use of their services, as well as respective contractual conditions.
iv. To order providers of the mobile IAS to send to ANACOM, within a period not exceeding 20 working days, detailed information on:
- the specific manner in which they propose to accomplish compliance with the stipulated provisions of (i) and (ii), and in particular the details of the amendments which they propose to introduce for that purpose in their respective offers;
- the information referred to in point (iii) as regards offers subject to amendments; and
- the specific conditions that they will impose or consider imposing on undertakings potentially interested in having their respective applications/contents included in the zero-rated and similar offers of the provider of internet access services.
v. To recommend to providers of internet access services that, in their mobile Internet access offers, they bring the traffic volumes included in the general data allowances closer into line with traffic volumes under the specific data allowances, thereby ensuring free choice of users between the various content, applications and services available through Internet access, preferably by raising general data limits.
vi. To submit the present determination to the general consultation procedure provided for in Article 8 of Lei das Comunicações Eletrónicas (Electronic Communications Law) and to the prior hearing of interested parties, in accordance with the provisions of articles 121 and 122 of the Código de Procedimento Administrativo (Administrative Proceeding Code), granting, in both cases, a period of 25 working days, so that, if they so see fit, they may comment in writing, and in Portuguese.
