ANACOM has ordered Internet access service providers to cease zero-rating and similar offers that discriminate between traffic related to zero-rated applications and other traffic for commercial reasons. Compliance must take place within 20 working days of the publication of ANACOM’s decision, for offers available for new subscriptions, and within 90 working days for current contracts.
Users whose contracts provide for an ongoing loyalty period may, if they so wish, continue to benefit from these offers until the end of that period under the conditions applicable.
ANACOM considers that the transitional periods foreseen are sufficient to allow operators to adapt their offers to ANACOM's decision. It is important to note that providers of internet access services follow the evolution of the international context and the European regulatory framework, and ANACOM’s current action was expected. It should also be noted that some offers with zero-rating features have since been discontinued for new subscriptions, a sign that the market was aware of the need to change these offers.
According to the Authority’ decision, Internet access service providers must also send ANACOM detailed information on the changes made to their respective offers in order to comply with the Authority's decision, as well as the information disclosed to end-users, within 90 working days of the date of publication of the final decision.
Within the scope of the changes to be made by Internet access service providers, the Authority recommends that the rights and interests of users be safeguarded, that the possible effects of this process of change be minimised and that greater volumes of data be made available for general Internet access, at least equivalent to the total volume of data currently available to users, without increasing prices.
ANACOM has been continuously monitoring zero-rating and similar offers made available by internet access service providers. As a result of this work, several aspects of zero-rating and similar offers have raised concerns, and ANACOM took a decision on this matter in 2018, making recommendations to mitigate the potential impact of such offers, in particular with regard to end-users’ freedom of choice.
In September 2021, the Court of Justice of the European Union (CJEU) published three rulings, in which it concluded that zero-rating offers are inherently incompatible with paragraph 3 of article 3 of the Open Internet Regulation , as they do not comply with the general obligation to treat traffic equally, without discrimination or interference. As a result, the Body of European Regulators for Electronic Communications (BEREC) revised its guidelines on the open internet in June 2022 to reflect the content of these rulings.
Given the evolution of the regulatory framework at European level, the Authority’s 2018 decision on this matter proved to be insufficient to comply with rules on open internet access in the current context, as 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 and similar offers. ANACOM now concludes, in line with the CJEU and BEREC, that these offers, that by treating a number of applications differently, these offers do not comply with the Open Internet Regulation's obligation to treat traffic equally.
These are the concerns that underlie the decision now adopted by ANACOM.
Consult:
- Approval of the final decision on zero-rating and similar offers in Portugal in the context of the Open Internet https://www.anacom.pt/render.jsp?contentId=1742492
- Consultation on zero-rating and similar offers in Portugal in the context of the open Internet https://www.anacom.pt/render.jsp?contentId=1734298
