ANACOM orders changes to offers which violate net neutrality and roaming rules

ANACOM has given operators 50 working days to amend zero-rated and other similar offers, made available by providers of mobile Internet access, where these offers violate the provisions of the TSM Regulation1 and the Roaming Regulation2 as regards net neutrality and roaming rules.

This decision, which was preceded by a public consultation, stems from ANACOM's oversight of existing offers. This oversight led to ANACOM detecting situations where providers employ traffic management practices which differentiate between general traffic allowances and specific traffic allowances or applications not subject to traffic limits, in violation of net neutrality rules. It has also been found that, in some cases, specific data allowances cannot be used by customers when travelling in the European Economic Area (EEA) on terms equivalent to those which apply in Portugal; this is contrary to the roam-like-at-home principle.

In view of these findings, ANACOM has decided to order providers of Internet access services to amend procedures in offers which include the mobile Internet access service (including also the mobile phone Internet service), in cases where there has been differentiated treatment of traffic. This differentiated treatment has been between applications/content included in specific data allowances or those made available without traffic limits and other applications/content included in general data allowances, applied once general data allowances have been exhausted. ANACOM’s determination applies to any offer with these characteristics, even if not specifically referenced in ANACOM’s analysis.

This measure is designed to prevent discrimination between content and/or applications included within general data allowances (made subject to blocking or delays upon depletion of these allowances) and other content and/or applications covered by specific data allowances or not subject to data traffic limits (not made subject to blocking or delay when the overall data cap is reached). Such discrimination undermines the principles of open Internet and is prohibited by the TSM Regulation (article 3).

ANACOM also ordered providers to amend procedures (within the same 50-day deadline) in the case of offers where content/applications are subject to conditions of use when customers are roaming in the EEA which are not equivalent to conditions applied to use in the national territory.

In this context, providers which make offers available with zero-rated applications and/or offers with add-on data allowances for access to specific applications (whether or not included in the price of the contracted Internet Access tariff ) are to guarantee that their customers are able to use such applications when roaming in the EEA, and that their use in roaming is under the same conditions as applied to their use domestically. Providers may, however, apply responsible a Fair Use Policy in the case where offers can be classified as open data bundles.

ANACOM also recommended that providers increase general data allowances in their mobile Internet access offers, bringing these allowances closer into line with the traffic volumes applied under specific data allowances – this will give users free choice between the various content, applications and services available through Internet access.

It is also recommended that providers of internet access services publish the specific conditions which they plan to apply to parties potentially interested in having applications/content included in their zero-rated and similar offers. This will make it possible to extend the benefits of the open Internet to the offer side, providing opportunity for the development of new products and digital platforms in an environment of diverse innovation which is open and free.

Within the same 50-day period, operators are required to adapt the information provided on their websites, at retail outlets and through other information channels.

ANACOM also gave operators a period of 30 working days to report on how they will comply with this decision and on the conditions which they will apply to parties seeking inclusion of applications/content in their zero-rated and similar offers. These conditions are to be published.

This decision was adopted by ANACOM following a public consultation, which took place over 35 working days. Responses were received from 23 undertakings, including telecom operators, sector associations, organisations of the national scientific and technological system, a television station and a number of individual citizens.

ANACOM will continue to monitor the market and monitor the ongoing development of business models to ensure compliance with the rules in force.

1 Regulation no. 2015/2120 of the European Parliament and of the Council of 25 November 2015
2 Regulation (EU) no. 2017/920 of 17 May 2017