No conflict with principle of non-discrimination
71. The ACM is of the opinion that the service Data-free Music does not conflict with the principle of non-discrimination. Providers of internet access services are treated equally at this service. There are two entry barriers for music streaming services in order to be accepted at the service Data-free Music , namely that it should be a publicly accessible music streaming service and that internet traffic should be recognizable by means of an IP address. For the ACM, these conditions do not form substantial entry barriers. The first requirement is, for the ACM, not an unreasonable condition, because the music streaming service would otherwise not be consumable by other end-users at all. The technical condition with regard to the IP address is, for the ACM, not an unreasonable condition either because it allows T-Mobile to discern between internet traffic that should be zero-rated and internet traffic that should not be zero-rated. This condition, for the ACM, does not yield a substantive restriction.
72. From the data of T-Mobile, it is clear that many different music streaming services have been accepted at the service Data-free Music . This great diversity of accepted music streaming services proves, for the ACM, that all publicly accessible music streaming services can join the service Data-free Music. (…)
73. Furthermore, it holds that the service Data-free Music is treated the same as other services and applications when the monthly limit to internet use is exceeded. No distinction is made here between different services that an end-user can purchase at T-Mobile.
Further clarification to support this partial conclusion:
Narrow interpretation music streaming service
50. (…) That T-Mobile uses a narrow interpretation of the category that is zero-rated is, for the ACM, not unreasonable. On the website of T-Mobile the exceptions are clearly stated.(…)
Public music streaming service
51. A condition for music streaming services that T-Mobile uses while offering the service is that it should be a publicly accessible music streaming service. This is, for the ACM, not an unreasonable condition, because the music streaming service would otherwise not be consumable by other end-users at all. If the music streaming service is not offered publicly, only the end-user who owns the private streaming service has access to this streaming service.
Technical condition
52. A technical condition for music streaming services that T-Mobile uses for accepting them at the service Data-free Music is that the internet traffic should be recognizable by means of an IP address. This condition ensures that T-Mobile can discern between internet traffic that should be zero-rated and internet traffic that should not be zero-rated. (…)
Agreement
53. The agreements into which T-Mobile enters with the accepted music streaming services do not differ among each other. There are not additional demands on some music streaming services. Also, the agreement is available in English. (…)