Last July, ANACOM noted the existence of offers known as zero-rating offers and similar offers, made available by mobile Internet access providers, which were not compliant with European Internet neutrality legislation; ANACOM ordered operators to modify these offers, bringing them into compliance with Regulation no. 2015/2120 of the European Parliament and of the Council of 25 November 2015 (TSM Regulation) and indicated various solutions to achieve this without harming consumers.
The information transmitted by some operators to their customers, particularly information giving an incorrect impression that the solution adopted (the blocking of all traffic once the general data cap has been exceeded) arises from the determination of ANACOM, when in fact it arises from a decision that is the sole responsibility of operators, calls on ANACOM to make the following clarification:
1. In its decision last July, ANACOM ordered operators to modify offers because they were unlawful, but did not specify how offers should be changed, leaving operators free to find the best solutions for their customers.
Moreover, in its final decision and in the draft decision, which was submitted to public consultation in February, ANACOM provided examples of solutions which could be implemented without negative impact on consumers/users - i.e. solutions that allow operators to comply with the law, providing their customers with the freedom to choose the applications and content that they want to access on the Internet.
2. It is important to recall the principal solutions presented by ANACOM in its decision and in the draft decision submitted to public consultation:
- Solutions involving the possibility of using the specific allowance, when the general cap is exceeded, to access any type of application or content, including applications/content outside the original scope of this specific allowance.
- A further option, which has been acknowledged to be more difficult to apply in the case of prepaid tariffs, involves the absence of any block or delay when the overall traffic allowance is depleted, where customers can use their Internet access upon payment of a daily value in order to continue using the specific contracted allowance in relation to zero-rating or similar applications/content.
Even by opting to block all traffic, there is nothing to prevent data traffic which is unused in one month from being used in the month or in subsequent months under the general data allowance, a possibility which operators also do not seem to make provision for.
3. ANACOM adopted its decision to guarantee the freedom of choice of consumers and the equal treatment of Internet traffic, preventing discrimination between content and/or applications which form part of general data allowances (subject to blocking or delays upon depletion of these allowances) and content and/or applications covered by specific data allowances or not subject to data traffic limits (not subject to any block or delay when the general data cap is exceeded); such discrimination is in breach of article 3 of the TSM Regulation;
4. As such, operators which have chosen to comply with the TSM Regulation based on solutions which block access to the specific data allowance associated with zero-rating and similar offers when the general data allowance has been completed have taken a decision that is exclusively theirs – this decision cannot be attributed in any way to ANACOM's determination, available at: Consultation on zero-rating and similar practices in Portugalhttps://www.anacom.pt/render.jsp?contentId=1430837.
5. The communication made by some operators and with respect to certain offers to their customers, indicating that the solution adopted (blocking all traffic upon depletion of the general data allowance) is the result of ANACOM's determination, constitutes incorrect and abusive information, since the option taken by each operator remains their sole responsibility.
6. ANACOM intends to reinforce the recommendation that operators increase general data allowances in order to enable effective Internet access, ensuring that users retain free choices as regards the various content, applications and services available. ANACOM considers that operators have broad scope to formulate their offers on the basis of solutions that respect the law while genuinely safeguarding the interests of consumers.
7. The benefits of an open Internet are also evident on the supply side and in the long term, and it is essential for the development of society and the economy that new products and digital platforms can be developed in a free, open environment with diversified innovation, and on a basis of equality of access.
