ANACOM gives MEO, NOS and Vodafone 40 working days to amend offers which are in breach net neutrality and roaming rules

ANACOM has been monitoring zero-rating and similar offers made available by mobile Internet access providers and has concluded that some of these offers are in breach of the Telecom Single Market Regulation (TSM) and the Roaming Regulation, as regards rules governing net neutrality and roaming.

Offers were detected in which providers employ traffic management practices which distinguish general traffic plafonds from specific plafonds or plafonds for applications without traffic limits; this differentiation is deemed to be in breach of net neutrality rules and undermines innovation in the Internet ecosystem. It has also been found that, in certain cases, specific data plafonds cannot be used in the European Economic Area (EEA) under terms which are equivalent to those used in Portugal - this is contrary to the Roam Like at Home principle.

In view of these facts, ANACOM has decided to order providers to alter procedures adopted in offers which include the mobile Internet access service (including also the mobile-phone Internet service), in cases where, upon depletion of the general data plafond, treatment of traffic related to applications/content included in specific data plafonds or applications/content available without traffic limit is differentiated from the treatment of traffic related to traffic related to other applications/content covered by general data plafonds. ANACOM's determination applies to any offer that exhibits these characteristics, even if not specified in the performed analysis.

The objective of this measure is to prevent discrimination between content and/or applications included in general data plafonds (and which are subject to blocking or delays when these plafonds are depleted), and content and/or applications included in specific data plafonds or without traffic limits (not subject to blocking or delays when these plafonds are depleted). This discrimination, which is prohibited by the TSM Regulation (article 3), undermines Internet neutrality.

However, taking into account that the most important factor for consumers is the capacity to take full advantage of the plafond available to them (general or specific), it is necessary to find solutions that allow this, while ensuring compliance with net neutrality rules.

One solution could entail allowing the specific plafond to be used after the general plafond is depleted, so that users can continue to access any application or content, even outside the scope of that plafond.

Another solution which satisfies consumer requirements, while also ensuring compliance with the TSM regulation, entails the absence of any blocking or delay when the general traffic plafond is depleted, as happens in various offers available in the market. With these offers, customers can continue to access the Internet by paying a daily charge, or a sum per MB or per GB, in which case they can continue to use the specific plafond which they have contracted for zero-rating or similar applications/content.

Permission to access customer services provided by the provider would also be deemed acceptable, even when general Internet access is blocked, but only so that the customer is able to purchase additional data.

In cases where the option to correct the situation entails blocking all traffic - general traffic and traffic included in zero-rating or similar offers - when the general plafond is depleted, this should be completely transparent to the customer. One way of doing this is to set up an alert associated with the consumption of this plafond, which indicates that all traffic will be blocked when it is depleted.

It was also determined by ANACOM that providers should change procedures in the case of offers with applications/contents subject to conditions of use, when used in roaming in the EEA, which are not equivalent to those available when used in the national territory. In this context, providers with offers with zero-rated applications and/or offers with additional plafonds applying to access to specific applications (whether or not included in the price of the contracted Internet access service tariff), should ensure that their customers are able to use these applications under conditions equivalent to those used domestically when using roaming in the EEA. However, in the case of offers that involve the provision of applications/content not subject to traffic limits or subject to high limits, providers may apply a specific fair use policy for users of these applications in roaming in the EEA, in place of each specific plafond for applications included in the offer, or instead of providing unlimited traffic to a set of applications.

Operators will have a period of 40 working days to implement the changes determined by ANACOM.

ANACOM also recommends to operators that, in their mobile Internet access offers, they raise the general data plafonds, in order to bring them more into line with the specific data traffic plafonds, ensuring that users have free choice of content, applications and services available through Internet access.

The draft decision will now be submitted to the public consultation and prior hearing procedure for a period of 25 working days.

Annex 1

Zero-rating offers - are offers in which the consumption of data associated with one or more contents, applications or services is not considered for the purpose of accounting the volume of data consumed under the offer subscribed to by the customer; normally, no price is charged for traffic associated with this content/application/service.

Offers similar to the zero-rating offers - are offers which, under a given tariff, include free access to specific applications or content with a traffic limit which is additional to the general data plafond and is normally higher than this plafond or offers in which the customer subscribes, for a specific price, to specific applications or content in addition to the base tariff - these may or may not be subject to a traffic limit.

Consult:

• Approval of draft decision on zero-rating and similar commercial practices in Portugal https://www.anacom.pt/render.jsp?contentId=1430814

• Consultation on zero-rating and similar commercial practices in Portugal https://www.anacom.pt/render.jsp?contentId=1430837