ACM: zero-rating services are not allowed under the Open Internet Regulation

Zero-rating services are not allowed if a distinction is made on the basis of types of data traffic categories. Zero-rating means that providers do not charge anything for data traffic involving certain types of content or applications. The European guidelines for the Open Internet Regulation needed to be updated with regard to this point following rulings of the European Court of Justice in several German cases about zero-rating. This is one of the developments that have been included in the 2021-2022 Annual Report on Net Neutrality of the Netherlands Authority for Consumers and Markets (ACM).

The updated guidelines have already been published on the website of BEREC, which is the Body of European Regulators for Electronic Communication. In the past period, ACM, which is this year’s chair of BEREC, has helped revise the guidelines for open internet. ACM uses these in its enforcement of compliance with the rules for open internet.

Net neutrality

In Europe, internet providers must treat all data traffic in a non-discriminatory manner, which means they must treat all data traffic equally. In that way, the internet is able to continue to develop freely and independently. This is called net neutrality, and has been laid down in the Open Internet Regulation. This means, for example, that data traffic cannot be blocked or unnecessarily restricted. When using zero-rating services, certain types of data traffic (for example, traffic that is used for video and music streaming apps) are not charged to users. According to the European Court, that is considered discrimination, and is therefore a violation of the Open Internet Regulation.

Free choice of modems

Another element of net neutrality is that consumers must be able to connect their own modems or routers to their broadband connections. In June, ACM imposed an order subject to periodic penalty payments on Dutch cable operator Ziggo, because there were still areas where Ziggo did not offer a free choice of modems, even though those rules already went into effect on 28 January. Ziggo recently informed ACM that all of its customers are now able to connect their own modems or routers. For the time being, ACM assumes that the imposed order subject to periodic penalty payments does not need to be claimed, but, over the next few months, ACM will keep a close watch on any reports or complaints filed by end-users.

Recent developments

In some situations, such as with innovative services, internet providers may have questions about the applicability of the Open Internet Regulation to such situations. That is why ACM welcomes any questions. In addition, ACM expects to sit down with market participants later this year, and discuss the trends and developments in the telecom sector, as well as the role of net neutrality in that context.

Anyone can file reports about net neutrality with ACM. They can do so by phone, in writing, or on social media. ACM will take action, if necessary.