95. According to the information collected in the context of the request for information made to IAS providers in August 2017, all IAS providers questioned (VODAFONE, MEO and NOS) identified situations related to the mobile Internet access offers which they sell1 (in particular those with zero-rating or comparable characteristics) in which they manage traffic in order to apply differential treatment to certain applications.
96. In particular, for illustrative purposes, it should be noted:
a. For example, in VODAFONE's "Yorn X" tariffs, the traffic of applications included in the additional data packages of 10 GB and 5 GB per month is, according to information provided by the company to ANACOM, blocked only when the respective limit has been reached, even after the general Internet access cap has already been exceeded and traffic has been blocked to content in general;
b. The applications "My Vodafone", "Vodafone Start" and "MB Phone", made available by VODAFONE, continue to be accessible, according to information provided by the company to ANACOM, even after the general data allowance subscribed to by the customer has been depleted, and access to all other content is blocked;
c. The applications included in MEO's "Smart Net" offer remain accessible for as long as the specific cap has not been reached, even if the overall data cap has already been reached and the daily activation of daily allowances has been blocked at the customer's request or because the customer has no balance;
d. In NOS's "WTF" offer, applications with unlimited traffic remain accessible even if the overall data cap has been reached and access to other traffic has been blocked.
97. These practices correspond to one of the examples explicitly referenced in the Net Neutrality Guidelines as being incompatible with the TSM Regulation, specifically zero-rating offers, where all applications are blocked (or have reduced speed) except for zero-rated or similar applications, when the overall data cap is exceeded.
98. Although in some cases the offers in question are not strictly zero-rated, but similar (in that they include applications which, while not of unlimited use, count against specific additional allowances, in some cases upon the payment of specific charges), it should be noted that neither the TSM Regulation nor the Net Neutrality Guidelines confine the obligation to treat all traffic equitably to offers which are strictly zero-rating offers, but take a much broader approach.
99. Even if the example referred to in these Guidelines was strictly limited to zero-rating offers and was not applicable to some of the offers under consideration, offers where access is only allowed to certain applications or categories of applications (specifically when the overall internet access cap is exceeded), even if for short periods of time, would ultimately acquire characteristics of a sub-Internet service – such characteristics are not compatible with the TSM Regulation.
100. In fact, although these offers are not sold in isolation, they are always dependent on the user having an IAS, and cannot therefore be categorized, a priori, as sub-Internet services, in practice, as soon as the general cap is exceeded and access is limited to the applications/categories of applications included in the specific offers of zero-rating or similar offers, they do become a sub-Internet service, which is clearly contrary to the TSM Regulation.
101. It should also be noted that, irrespective of compatibility with the TSM Regulation, the expectation of users will be that they are able to fully exhaust their available capacity, be it the general data allowances or any specific allowance. And this expectation will be greater in situations where there are costs associated with the acquisition of specific data allowances - such as the case of MEO's "Smart Net" offers.
102. One way of meeting customers' expectations while complying with the TSM regulation could be the absence of any block or delay applied to IAS traffic when the overall traffic limit is exceeded, for example as already happens in the case of several offers, where the customer can still use their Internet access by paying a daily value (or possibly per MB or GB), in which case they may also continue to use the specific ceiling contracted in relation to zero-rating or similar applications/content. However, this option may not be applicable to pre-paid customers in situations where their balance has been exhausted, requiring another approach from IAS providers in these cases.
103. A further option, which is also compatible with the TSM Regulation, would involve making it possible to use the specific allowance, when the general cap is exceeded, to access any type of application/content, including those outside the original scope of this specific allowance. In any case, the solution adopted must be transparent to customers and subject to the regime applicable to contractual amendments.
104. In the event that, as an alternative, the IAS provider chooses to block all traffic (general traffic and traffic encompassed by zero-rating or similar offers) as soon as the general data cap is exceeded, this situation must be completely transparent to the customer (including, as applicable, in contracts and on provider websites); this applies also in situations where the blocking results from customer request, e.g. in cases where the customer does not intend to continue to have access to the Internet after reaching the general traffic cap, so that it is completely clear that this block will also affect traffic associated with applications/content covered by zero-rating or similar offers. One way of making this option clearer to the user could be to create an alert associated with the consumption of the general traffic limit (for example, when it reached 80%), indicating that when this limit has been exceeded, if the user has blocked the automatic activation of the daily general allowance or has no account balance, all traffic would be blocked, including traffic associated with any specific allowance or content/applications not subject to traffic limits.
105. Also, in terms of differential treatment given to traffic associated with certain applications/contents, the specific case is recalled of the applications/content that also continue to be accessible after general Internet access is blocked - these relate to services provided by the IAS provider, such as the service to check data use, or to acquire additional data, etc. Examples of these applications are, according to VODAFONE's response to a request for information from ANACOM (August 2017), "My Vodafone", "MB Phone" and "Vodafone Start".
106. In this context, it should be noted that the Net Neutrality Guidelines indicate permission to access "customer services" as a potentially acceptable practice, even when general Internet access is blocked, but only so that the customer is able to purchase additional data allowance. Notwithstanding their potential usefulness for customers, the applications in question (which are referred to in the previous paragraph as an example) in some cases go beyond the scope mentioned, and in such cases fair and non-discriminatory treatment of traffic in provision of the IAS is not guaranteed. and, at the same time, compliance with conditions laid down in the TSM Regulation is not ensured, particularly as regards Article 3(3) of the Regulation.
107. In the light of the above, and although IAS providers are free to decide upon the introduction of certain measures when the general Internet access cap is exceeded (i.e. they may opt to block traffic entirely, or to reduce speed) or decide not to take any action to block or slow down the traffic in question, these providers must ensure, for each offer, fair and non-discriminatory treatment of Internet access traffic - whether traffic included in the general allowance or traffic included in any specific allowances; As a consequence, IAS providers are required to amend their procedures, where applicable, in order to ensure compliance with the TSM Regulation, in particular in the case of offers identified above (or any other offers, albeit not identified in this analysis, where the same type of practices are employed). That is, there can be no situations where only applications/content which are zero-rating or associated with specific data allowances can be accessed and traffic associated with the general data cap is blocked or slowed down, with a possible exception given to applications that enable customers to acquire additional data traffic when their allowance has been depleted and caps reached, as referenced above.
108. As regards offers that are advertised on the websites of IAS providers as featuring, for example, "apps without spending data" or "apps without spending net" or "free apps", but where it is additionally indicated in notes, whether or not included on the same website pages, that there is a fair use policy entailing the application of certain traffic limits in relation to the applications to which these notes refer, ANACOM reserves its analysis of said disclosure models to a separate process.
