There are multiple commercial offers at national level, commonly referred to as zero-rating or similar offers, which not only include a general data cap for all traffic, but also include specific data caps or have no traffic limits for certain applications or content.
ANACOM has been monitoring continuously zero-rating and similar offers made available by internet access service providers at national level. This monitoring is based not only on information provided by providers on their websites, but also on information transmitted by the most representative providers in the market - MEO, NOS, NOWO and Vodafone - in the scope of the various requests for information sent by this Authority, on the subject of the open Internet.
On the basis of the monitoring carried out, several aspects related to zero-rating and similar offers have raised concerns, to the extent that they may condition end-users’ freedom of choice, affecting the full exercise of their Internet access rights, as provided for in the Telecom Single Market (TSM) Regulation https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32015R2120. This Authority has also observed that, in recent years, there have been no relevant developments by providers in order to mitigate the potential impacts arising from this type of offers, in line with the recommendations set out by this Authority in the 2018 decisionhttps://www.anacom.pt/render.jsp?contentId=1456674.
In September 2021, the Court of Justice of the European Union (CJEU) adopted three decisions in which it concluded that offers with zero-rating features were, by their nature, incompatible with paragraph 3 of article 3 of the TSM Regulation because they breached the general obligation to treat traffic fairly, without discrimination or interference.
Following the publication of the CJEU judgments of September 2021, the Body of European Regulators for Electronic Communications (BEREC) revised its guidelines on the open internet on 14 June 2022, which now provide, consistent with the Court’s understanding, that «the general obligation to treat all traffic equally is not limited to technical traffic management practices but also applies to commercial practices of the ISP such as differentiated pricing. Hence, it also includes unequal treatment by way of zero tariff options and similar offers» (cfr. paragraph 49).
Given the evolution of the regulatory framework at European level, the 2018 decision adopted by this Authorityhttps://www.anacom.pt/render.jsp?contentId=1456674 on this matter appears, in the current context, to be insufficient to comply with rules on open internet access, to the extent that the judgement of incompatibility with the applicable legal framework that arose from it was limited to some traffic management measures associated with certain zero-rating offers. ANACOM now concludes, in line with the CJEU and BEREC, that these offers, by treating a set of applications differently, fail to comply with the obligation of equal treatment of traffic provided for in the TSM Regulation.
ANACOM considers it relevant that rights and interests of users are safeguarded, in the scope of changes to be made by providers to the commercial offers analysed, in order to ensure compliance with the aforementioned obligation of fair treatment of traffic.
In this context, ANACOM’s draft decision, approved on 8 November 2022, determines the termination of zero-rating and similar offers that do not comply with the TSM Regulation, as they discriminate, based on commercial issues, between traffic related to zero-rated applications and the remaining traffic.
At the same time, this Authority recommends that, in the context of changes to be introduced, an increase in the volume of data for general internet access should be promoted so that it is at least equivalent to the total volume of data (including general and specific caps) that users currently have available, in line with changes introduced by some providers in other European Union countries.
ANACOM considers it appropriate to set a transitional period for providers to terminate zero-rating and similar offers that do not comply with the TSM Regulation, of 90 working days after the date of the final decision, in the case of contracts currently in force, and of 20 working days after the date of the final decision, in the case of offers available for new subscriptions.
The deadline for submitting contributions under the general consultation procedure is 15 December 2022. Interested parties may send written contributions, in Portuguese, to the email address zero-rating@anacom.ptmailto:zero-rating@anacom.pt.
Once the consultation process has been completed, contributions received will be made public, whereby interested parties should also send a version with all confidential information removed for the purpose of publication on this website.
Consult:
- Approval of the draft decision on zero-rating and similar offers in Portugal in the context of the open Internet https://www.anacom.pt/render.jsp?contentId=1734288
- Consultation on zero-rating and similar offers in Portugal in the context of the open Internet https://www.anacom.pt/render.jsp?contentId=1734298
