III.2. The zero-rating offers and similar practices adopted by providers of internet access services in Portugal

22. The present analysis is carried out based, above all, on the information obtained from the principal IAS providers active in Portugal in the area of mobile Internet access - MEO - Serviços de Comunicações e Multimédia, S.A. (MEO), NOS Comunicações, S.A. and group companies (NOS Madeira Comunicações, S.A. and NOS Açores Comunicações, S.A.) (NOS), NOWO Communications, S.A. (NOWO), and VODAFONE PORTUGAL - Comunicações Pessoais, S.A. (VODAFONE), through their responses to the questionnaire sent out by ANACOM in March 2017 to collect information essentially, but not exclusively, for the preparation of the Annual Report, as well as in responses to requests from ANACOM in August and November 2017 for additional clarifications centred on zero-rating and similar offers.

23. Notwithstanding the information collected from the IAS providers, ANACOM also monitored the information made available by these providers on their websites, also covering use of applications in Roaming in the European Economic Area (EEA).

24. From the responses received and from the survey carried out by ANACOM of the information provided on the websites of the IAS providers, there was a certain heterogeneity found in the treatment of the applications covered by zero-rating offerings from the different providers, with note made of variations in the type of treatment given by the same undertaking to its own different offers, with regard to blocking access to specific applications once the general traffic limit of the offer has been reached.

25. As regards the use of specific applications in EEA roaming which are free of charge in the national territory, according to information published on the websites of IAS providers, for the same provider, the same type of rule normally applies irrespective of offers subscribed to domestically.

26. At the same time, it should also be noted that most IAS providers highlight that the way in which this matter is approached, particularly with regard to the selection of applications/contents incorporated in zero-rating offers, corresponds to the preferences of its customers; they did not identify any problems arising as a result.

27. To provide examples, details are given of some commercial offers from the main IAS providers active in Portugal, in provision of mobile Internet access (whether comprising bundled offers or available on a standalone basis) which include applications/content with zero-rating or similar characteristics, and which became available in January 2018.

a. "Smart Net" offer - MEO1

28. The " Smart Net" offer has been available from MEO since mid-2017.

28Smart NetMEO.png
Source: MEO website, on 19 January 2018 (https://www.meo.pt/internet/internet-movel/telemovel/pacotes-com-telemovelhttps://www.meo.pt/internet/internet-movel/telemovel/pacotes-com-telemovel).

29. In general, the "Smart Net" offer consists of specific data blocks of 10 GB2 per month, which may only be acquired by those who have access to the mobile Internet and which customers can add to the base Internet allowance upon payment of a specific monthly charge (promotional price of 4.99 euros, normal price of 6.99 euros, including VAT, for post-paid service packages and 6.99 euros, including VAT, for pre-paid tariffs).

30. There are several "Smart Net" variations that differ according to the set of applications which can be used under the specific data allowance. The "Smart Net" offers are identified as follows:

a. "Messaging" for communication applications,

b. "Social" for social network applications,

c. "Video" for video content applications,

d. "Music" for applications related to music streaming and

e. "Email&Cloud" for email services and cloud storage applications.

31. According to the information on MEO's website, "[the] traffic included in Smart Net is valid for use in the Portuguese territory."

32. Also according to the information indicated on the same website, the customer can choose the "Smart Net" which they prefer and switch/disable "Smart Nets" in the month following activation, free of charge.

33. According to the clarifications sent to ANACOM by MEO in December 2017, the traffic associated with the applications/contents incorporated in the "Smart Nets" is counted only against the respective data limit, and the remaining traffic is counted against the customer’s general data limit, while it is available.

34. According to the information provided by MEO, there is no blocking of Internet access traffic in general, since, customers who have exceeded the general data caps of any offer can, by default, continue to use the service in "pay-per-use" mode or, in the case of pre-paid tariffs, provided that and for as long as they have available balance.

35. However, customers can request traffic barring after the general data cap is exceeded. In this situation, if they have purchased a Smart Net and if the allowance available under that offer has not been depleted, they will be able to use it, but only for the applications included in the offer until depleted.

36. It appears that an equivalent situation occurs in the case of pre-paid tariffs, after the customer has used up their balance, and if there is still traffic available under the "Smart Net" offer cap.

37. According to information provided by MEO, the "Smart Net" offers were designed based on the applications most used by Portuguese consumers, but no details were given as to the specific metrics that would have been used to gauge this use.

38. The company reported that it is also open to the inclusion of other content in their "Smart Net" offers and can be contacted for this purpose. Furthermore, the website contains the following information: "To find out about the possibility of having your service/application included in our Smart Net offer, contact us by email at: smartnet@telecom.ptmailto:smartnet@telecom.pt.3.

39. As regards the inclusion of other content, MEO explained that the criteria used for this purpose (which were not yet tested at the time of giving clarification in December 2017) involve technical data that content and application providers will be required to supply so that this traffic can be correctly calculated in the respective "Smart Net", and also involve qualitative evaluation of the content type according to the existing themes (for example, games that do not fall under any of the "Smart Net" offers).

b. "Moche Legend" offer - MEO4

40. The "Moche Legend" offer (which is split into three separate tariffs) has been available from MEO for several years, although it has only recently started including traffic associated with specific applications with data allowances that are separate from other general allowances available. This is an offer targetted at a youth segment (under 25 years of age).

Source: MEO website on 12 January 2018 (https://www.moche.pt/tarifarios/moche-legend/https://www.moche.pt/tarifarios/moche-legend/).

41. The different versions of the "Moche Legend" tariff include a general data allowance (of 500 MB5, 1 GB and 5 GB per month). The prices of the tariffs, per week, vary between 2.25 euros and 3.99 euros, including VAT.

42. Additionally, for each of the tariffs in question, “Apps sem gastar net” (Applications without spending data) are available, as stated on the website, and the notes included therein indicate that the tariff is subject to a fair use policy: "15 GB per month for traffic from the following applications Spotify, Clash Royale, Twitter, Pokémon GO, Facebook, Instagram, Facebook Messenger, Snapchat, WhatsApp, Skype, Viber, Facetime, iMessage, MEO Music and MEO Cloud, valid in the Portuguese territory".

43. Also according to the information available on MEO's website, this offer includes "5 GB per month of traffic for the YouTube and Twitch application in the Moche Legend 1 GB and Moche Legend 5GB tariffs, valid in the Portuguese territory."

44. As regards the "Moche" offers, MEO made clear that when the overall mobile data cap is exceeded, traffic is not blocked and the speed of Internet access is not reduced to any content, including content included in 5 GB and 15 GB allowances. The customer can continue to access any general content, on a "pay-per-use" basis and in pre-paid mode, for as long as the customer has a balance available, as well as access content included within the specific caps for as long as these caps are not exceeded.

c. Other offers from MEO6

45. The "M5O Giga" offers (fibre), "M5O" (ADSL and satellite), "M4O Giga" (fibre) and "M3O Net" (fibre) correspond to bundles of services which include, fixed and mobile IAS and other services. As regards the mobile component, specifically the IAS over mobile phone, the overall data allowance of these offers varies between 3 GB (in the case of the "M3O Net" offer), 5 GB (in the case of the M4O Giga offer) and 10 GB (in the case of other offers), per month.

Source: Website of MEO on 1 January 2018 (https://www.meo.pt/pacoteshttps://www.meo.pt/pacotes).

46. All these offers include, in addition to the general data allowance, a specific mobile data traffic allowance of 20 GB for use in relation to a set of applications relating to communications and social network access. According to the operator's website, this entails "20 GB of included traffic to Facebook, Instagram, Snapchat, Facebook Messenger, WhatsApp, Skype, Pinterest, iMessage, Facetime, Viber, Twitter, LinkedIn, Tumblr and Hangouts. Free traffic for these apps is valid in the Portuguese territory"7.

47. The overall value of the offers mentioned above varies between 49.99 euros and 83.99 euros per month, including VAT.

48. According to information on MEO's website, some applications offered by the provider - such as "MEO Music", "MEO GO", "MEO Cloud" and "MEO Drive" - are available under all mobile IAS tariffs, but according to a clarification provided to ANACOM, the applications in question do not have associated traffic allowances, where used in the Portuguese territory, and their use is not counted for the purposes of the general Internet access cap.

d. The "Yorn X" offer - VODAFONE8

49. The " Yorn X" offer is aimed at the youth market (under 25 years of age) and has for some time provided a number of specific applications with allowances which are separate from the general allowances.

Source: VODAFONE website, on 19 January 2018 (https://www.yorn.net/yorn/tarifario/yornx.htmlhttps://www.yorn.net/yorn/tarifario/yornx.html).

50. The "Yorn X" offer is divided into three tariffs: offer with a general ceiling of 500 MB, 1 GB and 5 GB per month. The prices of the tariffs, per week, vary between 2.25 euros and 3.99 euros, including VAT.

51. As noted on its website, "the 1 GB and 5 GB tariffs include 5GB/month of traffic on YouTube and Twitch, (...)".

52. All offer tariffs include “apps sem gastar dados” (applications without spending data) (as evidenced by the IAS provider on its website) for a specific set of applications. According to the notes included on the website, this traffic is subject to a fair use policy: "traffic generated by the apps Pokémon GO, Facebook, Instagram, Snapchat, Facebook Messenger, WhatsApp, Skype, iMessage, FaceTime, Viber, Spotify, Vodafone Call+ and Message+ is included in the tariff and so is not deducted from your MB package. (...) traffic generated by the apps included in the tariff is subject to a Fair Use Policy, with a limit of 10 GB/month”.

53. Although the website does not mention whether the applications listed in the two previous paragraphs can be used outside Portuguese territory, in contact made, on the 25 January 2018 to VODAFONE's customer service, the provider reported that both the traffic included in the 10 GB ceiling and the additional 5 GB ceiling for "YouTube" and "Twitch" are for domestic use only.

54. In clarification provided to ANACOM, VODAFONE explained that under the "Yorn X" tariffs, once the monthly data cap has been reached, general traffic is blocked, except for applications included in the additional monthly data packages of 5 GB and 10 GB - this traffic is blocked only when this limit is reached. It is noted that on the company's website (as of 30 January 2018, it is stated that "once the MB package is depleted, the Mobile Internet Tariff is applied with access to 100 MB (valid for 5 days) for 1.99 euros".

55. In a communication addressed to ANACOM, VODAFONE states that the offers in question were launched prior to entry into force of the TSM Regulation, and were designed based on the preferences expressed by young users at whom these tariffs are targetted, although it did not provide detailed information on the subject.

56. The company emphasised that the offers in question provide users with a beneficial solution, responding to their specific needs without preventing them from accessing other content and/or applications not covered by a specific data offer. In addition, it stated that these tariffs provide data allowances giving access to a wide range of applications of the same type or category, where the content-owners are different and compete with each other, so that the user’s right of choice is safeguarded and also competition between content providers is guaranteed.

57. In addition, this IAS provider notes that if access to one of the tariff components (data allowance for access to a set of applications) was tied to the use of another (monthly data allowance), this would significantly reduce the benefits obtained by users from subscribing to these tariffs, resulting in their dissatisfaction, with a consequent increase in the number of complaints associated with net neutrality.

e. Other offers from VODAFONE9

58. VODAFONE’s "Vodafone PLUS" and "Vodafone UP" offers10 comprise specific data allowances for traffic associated with certain applications/content. There are also offers which comprise a bundle of services and which include the IAS over mobile phones; these include general allowances of 3 GB, 5 GB and 10 GB per month (except for the "Tv Net Voice + Mobile+ Internet Mobile" bundled offer of 3 GB) and also feature specific data allowances for traffic associated with certain applications/content.

Source: VODAFONE website, 16 January 2018 (https://www.vodafone.pt/main/particulares/tarifarios/plus/?icmp=tarifarios:title:all:plushttps://www.vodafone.pt/main/particulares/tarifarios/plus/?icmp=tarifarios:title:all:plus, https://www.vodafone.pt/main/particulares/tarifarios/up/?icmp=tarifarios:title:all:uphttps://www.vodafone.pt/main/particulares/tarifarios/up/?icmp=tarifarios:title:all:up and https://www.vodafone.pt/main/particulares/tv-net-voz/pacotes/https://www.vodafone.pt/main/particulares/tv-net-voz/pacotes/).

59. All these offers include a specific mobile data allowance of 20 GB of traffic for use associated with a set of applications relating to communications and social-network access. According to the operator's website, "the 20 GB package includes traffic to Facebook, Instagram, Snapchat, Facebook Messenger, WhatsApp, Skype, iMessage, FaceTime, Viber, Call+, Message+ and Tv Vodafone" (the last three are applications belonging to the IAS provider).

60. Although the website does not provide information about the use of these applications outside the national territory, when contacted on 25 January 2018, VODAFONE's customer services reported that under the “Vodafone PLUS” and “Vodafone UP” tariffs, the applications included in the additional 20 GB allowance can be accessed in roaming in the EEA, subject to a fair use policy of 1.33 GB specifically associated with these applications.

61. The monthly price of the offers ranges from 22.90 euros for "Vodafone PLUS" and 67.90 euros including VAT, in the case of a bundle of services which includes a greater number of services.

62. In addition to the offers mentioned, all VODAFONE offers provide access to the "My Vodafone", "Vodafone Start" and "MB Phone" applications. According to the company, the first two applications are “self-care” customer-support tools, which customers can use to manage consumption and applications, check invoices and subscribe to services, etc. The "MB Phone" application is also considered by VODAFONE as a "self-care" service, although with different features, since it allows customers to top up their balance and pay bills of electronic communications services.

63. With regard to the "My Vodafone", "Vodafone Start" and "MB Phone" offers, it was indicated that the data traffic associated with access and use is not counted by VODAFONE in determining the maximum traffic volume allowed under the data plan subscribed to by each customer, and when the general mobile data cap is exceeded, all content is blocked except for these applications.

f. The "WTF" offer - NOS11

64. The "WTF" offer is split into three separate tariffs for the youth market (under 25 years), which provide general data caps and specific caps for certain applications/content.

Source: NOS website, on 19 January 2018 (http://www.wtf.pt/http://www.wtf.pt/).

65. Options available include a general 500 MB cap ("W" tariff), a general 1 GB cap ("T" tariff), and a general 5 GB cap ("F" tariff) per month. The monthly charge associated with the "WTF" offer varies according to the characteristics of each tariff, between 9.80 euros and 16.80 euros (including VAT in both cases).

66. The "T" and "F" tariffs also include a specific allowance of 5 GB per month to access "YouTube and Spotify".

67. All tariffs (including the "W" tariff) also include a selection of "apps with unlimited traffic", according to information provided by NOS on its website; these apps generally fall into the categories of social-network access and communications : "with WTF you have free traffic for the following Apps: Facebook, Instagram, Snapchat, WhatsApp, Viber, Facebook Messenger, Skype, Blackberry Messenger, iMessage and Facetime", including also, on a promotional basis and for a limited period of time.

68. On the website it is stated that "free traffic for apps is for use only in the Portuguese territory".

69. In a clarification sent to ANACOM, NOS indicated that the applications subject to the specific ceiling of 5 GB per month under the WTF offer are blocked whenever the customer reaches the basic data limit (regardless of whether the specific limit has been reached). The operator also pointed out that this does not occur with applications which have unlimited traffic, where the customer can continue to use them, even if the basic data limit has been exceeded.

70. NOS considered that this commercial practice responds to the wishes of its customers, without giving any detail on the subject and not identifying any harm that might result, either for the end-customer or for content and application providers. The company also noted that the "WTF" offer is only one of multiple offers from NOS, whereby it considered that freedom of choice for end-customers is not curtailed.

g. The "Indie" offer from NOS12

28. The " Smart Net" offer has been available from MEO since mid-2017.

71. The " Indie" offer is an offer of a bundle of services that includes the fixed and mobile IAS. It is also an offer characterised by the availability of a general data allowance, in addition to a set of applications/contents subject to a specific data allowance.


Source: NOS website, 13 December 2017 (https://www.nos.pt/particulares/pacotes/todos-os-pacotes/Paginas/nos-indie.aspx#hww_flor2https://www.nos.pt/particulares/pacotes/todos-os-pacotes/Paginas/nos-indie.aspx).

This offer includes a general 3 GB monthly allowance for mobile phone access, plus an additional 20 GB per month to use on a selection of social networking and communications applications (Facebook, Instagram, Snapchat, WhatsApp, Facebook Messenger, Skype, Blackberry Messenger, iMessage and Facetime), as well as on NOS's own video streaming applications (N Play and NOS TV).

72. According to information on the NOS website, "Free traffic to these apps is valid in the Portuguese territory. Once net data on the mobile phone (3 GB) is depleted, data for apps is blocked until the next renewal of the allowance or purchase of additional Internet traffic on the mobile phone." As regards the rule applying after the offer's general data cap has been reached, this information was confirmed in a clarification provided by the company, which stated that after the general data cap for Internet access is reached, all traffic is blocked, including traffic to applications included in the additional 20 GB cap, even if this cap has not been reached.

73. The lowest monthly price of the offer, which also includes the subscription television service and the fixed IAS, is 49.99 euros, including VAT.

1 Available at https://www.meo.pt/internet/internet-movel/telemovel/pos-pagos-unlimited https://www.meo.pt/internet/internet-movel/telemovel/pos-pagos-unlimited.
2 Gigabytes.
3 Available at https://www.meo.pt/internet/internet-movel/telemovel/pacotes-com-telemovel https://www.meo.pt/internet/internet-movel/telemovel/pacotes-com-telemovel.
4 Available at https://www.moche.pt/tarifarios/moche-legend/ https://www.moche.pt/tarifarios/moche-legend/.
5 Megabytes.
6 Available at https://www.meo.pt/pacotes/mais-pacotes/fibra https://www.meo.pt/pacotes/mais-pacotes/fibra, https://www.meo.pt/pacotes/mais-pacotes/adsl https://www.meo.pt/pacotes/mais-pacotes/adsl and https://www.meo.pt/pacotes/mais-pacotes/satelite https://www.meo.pt/pacotes/mais-pacotes/satelite.
7 Upon contacting the customer services of MEO on 30 January 2018, on the "M5O Giga" package, the provider reported that the data limits for these applications and the general data limits of the offers are independent, and that the applications included in the specific 20 GB ceiling may continue to be used where the general date limit is exceeded.
8 Available at https://www.yorn.net/yorn/index.html https://www.yorn.net/yorn/index.html.
9 Available at https://www.vodafone.pt/main/particulares/tarifarios/plus/?icmp=tarifarios:title:all:plus https://www.vodafone.pt/main/particulares/tarifarios/plus/?icmp=tarifarios:title:all:plus, https://www.vodafone.pt/main/particulares/tarifarios/up/?icmp=tarifarios:title:all:up https://www.vodafone.pt/main/particulares/tarifarios/up/?icmp=tarifarios:title:all:up and https://www.vodafone.pt/main/particulares/tv-net-voz/pacotes/ https://www.vodafone.pt/main/particulares/tv-net-voz/pacotes/.
10 In the final phase of this document, VODAFONE discontinued this offer and introduced other tariffs which, however, are not mentioned in this document.
11 Available at http://www.wtf.pt/ http://www.wtf.pt/.
12 Available at https://www.nos.pt/particulares/pacotes/todos-os-pacotes/Paginas/nos-indie.aspx https://www.nos.pt/particulares/pacotes/todos-os-pacotes/Paginas/nos-indie.aspx.