ANACOM has approved a draft decision ordering Internet Service Providers (ISPs) to cease zero-rating and similar offers which discriminate, based on commercial issues, between traffic related to zero-rated applications and the remaining traffic. This termination must take place within 20 working days after the date of the final decision, for offers available for new subscriptions; and within 90 working days after the date of the final decision, for ongoing contracts.
Moreover, ISPs are also required, in this context, to send ANACOM, within 90 working days from the date of the final decision, detailed information on changes made to the respective offers in order to meet the decision of this Authority, as well as information disclosed to end-users.
Within the scope of the changes to be made by ISPs, this Authority recommends that rights and interests of users be safeguarded, by minimising possible impacts resulting from this process of change, making available greater volumes of data for general Internet access, at least equivalent to the total volume of data that users have currently available.
It should be noted that, in the scope of the 2018 decision, several aspects had already raised ANACOM’s concerns regarding these offers, which are characterised by including a specific data cap or by not including any traffic limits for certain applications or content. This data cap, which is several times higher than the amount of data included in the general data cap of offers, is usually integrated in the tariff plan or can be added for an extra charge. In order to minimise the potential negative impacts arising from this type of offer, namely in terms of end users’ freedom of choice, in the referred 2018 decision ANACOM had already recommended that traffic volumes between the different usage caps be brought closer together, preferably by increasing traffic volumes of general caps.
In the scope of its continued monitoring of zero-rating and similar offers, ANACOM has found that zero-rating and similar offers have been increasing in Portugal, and have also become more diverse over recent years, representing a significant proportion of Internet access offers in the national market.
Furthermore, it should be noted that general caps have not registered significant changes over the last few years with regard to the volume of data included in the base tariff, while specific caps have not only become available in tariffs that did not include this type of offers, giving rise to new offers with zero-rating characteristics, but some tariffs have even included an increase in the allocated traffic limit. Therefore, there is no evidence that ANACOM’s recommendation, included in its 2018 decision, has been followed by ISPs.
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 Open Internet Regulation because they breached the general obligation to treat traffic fairly, without discrimination or interference.
Given the evolution of the regulatory framework at European level, the 2018 decision adopted by this Authority 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 Open Internet Regulation.
This is the set of concerns behind the draft decision adopted by ANACOM, which will now be under public consultation until 15 December 2022.
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
