Following a request for clarification by Internet access service providers on the application of ANACOM’s decision of 1 March 2023 on zero-rating and similar offers in Portugal in the context of the Open Internet, ANACOM issues the following clarification:
By Decision of 1 March 2023 of 1 March 2023https://www.anacom.pt/render.jsp?contentId=1742492 on zero-rating and similar offers in Portugal in the context of the Open Internet, ANACOM ordered Internet access service providers (IASP) to discontinue any zero-rating and similar offers which are not in compliance with the provisions of paragraph 3 of article 3 of the TSM Regulation https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32015R2120, because they discriminate, with respect to commercial issues, between traffic related to zero-rated applications and other traffic. Such offers are to be discontinued no later than 90 working days following the date of the clarification's publication in the case of contracts that were current at that time, Nevertheless, end-users of zero-rating offers and similar contracts that are still subject to contract lock-in periods must be able to maintain these offers under the conditions in force until the end of the lock-in period if they so wish (point 8.i.b. of the decision).
The provision that offers may be maintained, retaining the conditions in force until the end of the contract lock-in period, is based on and contextualized in the report of the prior hearing and public consultation on the draft decision preceding the decision in question, which forms an integral part of it. In response to a comment received from an individual on the need to safeguard the option of terminating contracts without charge, it is noted (page 35 of this report) that LCE - Lei das Comunicações Eletrónicas (Electronic Communications Lawhttps://www.anacom.pt/render.jsp?contentId=1737530) (point c) of paragraph 1 of article 135) provides an exemption to this right in the case of contractual amendments that “result directly from the application of a national or European Union legislative act or an act or regulation of the NRA". As a result, it was concluded that “given the concern expressed by this individual, related to the collection of fees due to non-compliance with the contract lock-in period payable when end-users choose to terminate their contracts, when applicable, ANACOM considers that it is acceptable, within the scope of compliance with the decision, that end-users of zero-rating and similar offers with contracts that contain an ongoing lock-in period, may, if they so wish, maintain the offers under the conditions in force until the end of this period." (now underlined).
The concern that gave rise to the provision, in Decision of 01 March 2023, that end-users may maintain the offers under the conditions in force until the end of the lock-in period was aimed at ensuring that end-users would not lose out due to the changes introduced following ANACOM's decision of 1 March 2023.
In view of the above, whenever such changes are in accordance with the recommendation included in section 8.iii. of the Decision, which provides for the availability of greater volumes of data for general access to the Internet, at least equivalent to the total volume of data that users currently have available, without an increase in prices or changes to the other terms and conditions, the spirit of the decision is safeguarded.
In these circumstances, the context (explained in the consultation report that forms an integral part of the decision of 1 March 2023), which determines that end-users may maintain the offers under the conditions in force until the end of the contract lock-in period, does not apply (point 8.ib of the decision).
This clarification was approved by ANACOM decision of 11 May 2023.
Consult:
- Approval of clarification on the determination provided for in point 8.i.b. 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=1745017
- Consultation on zero-rating and similar offers in Portugal in the context of the open Internet https://www.anacom.pt/render.jsp?contentId=1734298
