This note consolidates information we have available on the current (July 2017) status of telecoms regulator’s considerations of zero-rated offers in Europe. See also our other posts on zero-rating.
- Many European regulators are yet to consider the issue of net neutrality and zero-rated services following the 2015 Regulations. For those who have reached decisions since the introduction of the 2015 Regulations, most seem to have concluded that as long as the service provider does not discriminate between zero-rated services and non-zero-rated services once a user’s data cap is reached, the service provider’s zero-rated offerings will be found to be in compliance with the 2015 Regulations. If, however, the user is permitted to continue using the zero-rated services after reaching a data cap, the BEREC guidelines (which say that allowing a zero-rated service to continue when others are blocked is an automatic per se breach) have been followed.
- So far it appears that only Belgium has conducted a full “multi-factor analysis” as required under the 2015 Regulation.
- Regulation (EU) 2015/2120 on open internet access (“2015 Regulation”) introduced EU-wide provisions on net neutrality with application from 30 April 2016. Article 3(1) says: “End-users shall have the right 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”. More information.
- The 2015 Regulation does not expressly prohibit “zero rating” services (ie the practice of not depleting a customer’s data bundle when they use certain services) , but Recital 7 and Article 3(2) of the 2015 Regulation state that national regulators “should be empowered to intervene against agreements or commercial practices which by reason of their scale, lead to situations where end users’ choice is materially reduced in practice”.
- Also, Article 3(3) states that “providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or inference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used”
- The Body of European Regulators for Electronic Communication (“BEREC”) published guidelines on 30 August 2016 which state (at paragraph 46) that regulators should conduct a “comprehensive assessment ” before determining if a commercial practice limits the exercise by end users of their rights under Article 3(1). More information.
- These guidelines also say (at paragraph 41) that if a service provider blocks all applications once a data cap is reached except for the zero-rated ones this would be a per se infringement.
- The table below shows how the issue of zero-rating has been treated in practice, so far, in the EU.
|Treatment of zero-rated service by the regulator / Outcome
The mobile operator’s own TV streaming service (3MobileTV). The zero rating did not apply to other TV streaming services.
|· On 5 October 2016, Epicenter.works (an NGO set up with the aim of combating data retention and safeguarding human rights) filed a complaint to the RTR against mobile operator Hutchison Drei Austria GmbH (commonly known as the mobile network 3) (“3”).
· Epicenter.works complained that 3’s plans, which allowed users to access zero-rated services operated by 3 after reaching their monthly cap, violated net neutrality principles. 3 subsequently amended its offerings so that the zero-rated services cannot be used once the user has reached their monthly data cap, and as a result it appears that the RTR will not need to make a decision. We have confirmed this via contacts with 3 in Austria.
· Outcome: Unclear, as 3 amended its offerings before the RTR began its investigation.
Users choose one of Facebook, WhatsApp, Snapchat, Instagram, Twitter and Pokemon Go to be a zero-rated app.
|· On 30 January 2017, the BIPT published a report containing its “multi-factor analysis” of the zero rating offers provided by Proximus (a Belgian telecoms company) and found that Proximus’ zero rating offers comply with EU net neutrality laws. Note, Proximus do not treat access to zero-rated apps differently from general internet access once a user reaches their monthly data cap.
· The BIPT emphasised the fact that by comparison to cases in Hungary and Sweden, Proximus’ offer allows users to choose an app that will be zero-rated until the user’s monthly data cap is reached, but once the cap is reached, access to all apps is restricted. For this reason, Proximus’ offering was found not to be discriminatory with regards to its treatment of data traffic.
· Outcome: In this case, Proximus’ zero rating offers were deemed to be compliant with the 2015 Regulation.
(NMHH)Magyar Telekom: OTT internet video
services (eg mobile/OTT TV Go and
HBO Go), and in particular its
‘unlimited TV and film’ monthly fee option.Telenor Hungary: social media apps, including its ‘MyChat’ IM app, its ‘MyMusic’ service and online radio stations.
· Magyar Telekom: in December 2016, following an investigation that was concluded on 21 November 2016, NMHH ordered Magyar Telekom (Hungary’s largest telecoms company) to suspend its zero-rated offers because it found it to be discriminatory. It is unclear whether Magyar Telekom has suspended its zero-rated offers.
· Telenor Hungary: in December 2016, NMHH concluded that the zero rating offer provided by Telenor Hungary (Hungary’s second largest mobile phone operator) of certain social media, music and radio apps infringes net neutrality rules. NMHH said that Telenor’s offers created a disadvantage for other competing apps because users would be encouraged to choose the zero-rated apps selected by Telenor rather than competing ones, as a supplement would be payable for competing apps once the users’ monthly data cap was exhausted. It is unclear whether Telenor Hungary has suspended its zero-rated offers.
· Outcome: The zero-rated services offered by both Magyar Telekom and Telenor Hungary were found to infringe EU net neutrality principles.
(NPT) n/a. .
· The NPT’s third principle in its 2009 Guidelines for Internet neutrality state that “Internet users are entitled to an Internet connection that is free of discrimination with regard to type of application, service or content orbased on sender or receiver address“, with the guidance to this principle stating that there must be no unreasonable manipulation or degradation of traffic for individual data streams. The 2009 Guidelines do not, however, directly address the issue of zero-rated services.
· In November 2014, the Norwegian Communications Authority published an article clarifying its stance to zero-rated services. The article states as follows: “The Norwegian guidelines on net neutrality state quite clearly that ‘Internet users are entitled to an Internet connection that is free of discrimination with regard to type of application, service or content or based on sender or receiver address.’ This means that in the Norwegian market zero-rating would constitute a violation of the guidelines … The Norwegian Post and Telecommunications Authority (NPT) has long been working actively for net neutrality for the benefit of Norwegian consumers, organisations and businesses. The Internet is important to economy, cultural diversity, social life and democracy, and NPT therefore works to preserve the Internet as an open platform. Internet service providers should use methods other than discrimination of content and/or applications to differentiate their products. One possibility is differentiation on the basis of speed, in line with the Norwegian guidelines on net neutrality.“This suggests that zero-rated services would be held to violate the 2015 Regulations, although it is not clear whether the NPT would find all zero-rated services to be in violation, or, for example, only those services which discriminated data traffic after a user reached their data cap.
· Outcome: no specific cases considered under the 2015 Regulation
Si.mobil: the cloud storage service Hangar Mapa.
· In January 2015, AKOS prohibited the zero rating offers provided by Telkom Slovenije (Slovenian telecoms company) and Si.mobil (Slovenia’s second largest mobile operator), which permitted the use of the music app Deezer and cloud storage service Hangar Mapa, respectively.
· Administrative court decision: following Telkom Slovenije and Si.mobil’s appeal against AKOS’ decision of January 2015 (see above), in July 2016, the administrative court annulled AKOS’ decision and returned the matter back to them. The court held that the Slovenian Electronic Communications Act does not prohibit zero rating outright and that the regulator had not based its decision on any determination of harm to end-users, but on an incorrectly assumed legislative prohibition of positive price discrimination.
· In November 2016, AKOS reissued its decision on Telkom Slovenije and Si.mobil, deciding that offers which throttle all traffic except zero-rated traffic once users reach their monthly limit violate the provisions of Slovenian net neutrality rules.
· Outcome: By contrast to the administrative court, AKOS found that the zero-rated services offered by both Telekom Slovenije and Si.mobil violated net neutrality laws.
Telia: ‘free surf on social media’ service and ‘free surf listening’ music service.
|· Telia: in January 2017, the PTS found the zero rating offers provided by Telia (a large Swedish telephone company and mobile network operator) violated the 2015 Regulation because they did not treat internet access equally and failed to comply with BEREC guidelines by blocking competing apps when the monthly cap was reached.
· Telia court decision: on 8 March 2017, the court suspended the PTS’ decision of January 2017 (see above) on the basis that it is uncertain whether an immediate discontinuance of Telia’s services would have substantial negative effects for Telia’s end users. The court did not, however, assess the question of net neutrality and the application of the 2015 Regulation.
· Hi3G: the PTS also opened an investigation into a zero rating offer from Hi3G (a Swedish telecoms operator) for music streaming services, which did not block the zero-rated services when the user’s data cap was reached. In December 2016, Hi3G informed the PTS that it would change its zero rating offer to comply with the 2015 Regulation. No further action appears to have been taken by the PTS in this case.
· Outcome: The services offered by Telia was found by the PTS to infringe EU net neutrality principles but the focus appears to be on traffic management not zero-rating.
Vodafone: streaming of the app HBO Go.
· Vodafone: in January 2015, the ACM issued a fine against Vodafone, stating that its zero-rated app HBO Go infringed national laws on network neutrality.· Further information on the ACM’s Vodafone decision. / Further information on the ACM’s Vodafone decision (2).
Post-2015 Regulation:· T-Mobile: in October 2016, the ACM requested that T-Mobile stop its zero rating offer on music streaming services. This was despite the fact that T-Mobile’s zero rating offer includes any music streaming services, and is not restricted to selected apps.· Further information on the ACM’s T-Mobile decision and T-Mobile’s response to the ACM’s decision (Dutch only).· T-Mobile court decision: on 20 April 2017, the Dutch court ruled that the Netherlands law was not consistent with, and has been superseded by, the 2015 EU Regulation. This meant that the T-Mobile service can continue until such time as ACM re-opens the matter and conducts a thorough analysis of the service under the 2015 Regulation. Report of the outcome of the T-Mobile appeal.· On 23 May 2017 ACM said that it had begun a new investigation under the 2015 Regulation. This is ongoing.· Outcome: In both cases, the ACM blocked zero rating offers on the basis of a Dutch law pre-dating the 2015 Regulation. T-Mobile’s appeal makes clear that the 2015 Regulation supersedes Dutch law and so the regulator mustconduct a specific analysis before banning a service. The new ACM investigation is ongoing.
Wind Tre: “Music 3” music service; and the Veon app (customer care and messaging)
|· On 15th March 2017 AGCOM launched an investigation into these 2 services offered by WIND Tre, both of which work so as to allow the zero-rated application .to continue even after a data bundle is used up.
· Outcome: Zero-rated apps (which continue after data cap is used) currently appear to be considered unlawful by AGCOM. Awaiting news of Wind Tre’s next steps and possible appeal.
Deutsche Telekom: StreamOn (zero rated music and also video for some customers)
|· On 16 May 2017 the German regulator Bundesnetzagentur opened an investigation into whether this service infringes the 2015 Regulation. It applies to a wide range of music and video services.
· Outcome: pending the result of the investigation StreamOn continues and has expended (as of July 2017) to around 50 content partners.