The ACM (Authority for Consumers & Markets) has decided that T-Mobile may continue to violate the principle of net neutrality with its service “Data-free Music”. Here is a translation of the key paragraphs of the decision of the ACM.
This is not a translation for legal equivalence. It was written by a volunteer and should not be construed to provide any measure of legal certainty. The NRA has told us it will provide for a full translation of its decisionHere's the full decision in Dutch into English somewhere in the next weeks. We will update this article when it is available.
The norm against which ACM tests the service of T-Mobile
37. For the appreciation of the service Data-free Music one should test using the BEREC Guidelines whether the service Data-free Music complies with the goal of the net neutrality regulation. This becomes clear in marginal 43 of the BEREC Guidelines. It states that:
"When assessing such agreements or commercial practices like zero-rating in relation to Article 3(2), the assessment should take into account the aim of the Regulation to "safeguard equal and non-discriminatory treatment of traffic" (Article 1) and to "guarantee the continued functioning of the internet ecosystem as an engine of innovation" (Recital 1) as well as Recital 7, which directs intervention against agreements or commercial practices which, by reason of their scale, lead to situations where end-users' choice is materially reduced in practice", or which would result in "the undermining of the essence of the end-users' rights."
38. It is clear from the above that the goal of the net neutrality regulation consists of two parts, namely the principle of non-discrimination and the effect on end-users' rights. (…)
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.
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. (…)
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. (…)
No restriction of end-users' rights
74. At the same time, the service Data-free Music does not restrict end-users' rights. There is no restriction of the rights of consumers and business customers. This is the case, because there is a large variety of music streaming services that are zero-rated, and thus consumers and business customers of T-Mobile have ample opportunity to choose. Moreover, consumers and business customers can influence which music streaming services are accepted, because they can let T-Mobile know that they wish to have a certain music streaming service be accepted at the service Data-free Music . (…)
75. At the service Data-free Music , end-users' rights of providers of content and applications are also not restricted. The diversity of music streaming services that are part of the service Data-free Music and the fact that end-users can propose music streaming services to be accepted for zero-rating prove this. That no restriction of end-users' rights also is clear from the fact the service Data-free Music is only available to T-Mobile clients with a data plan of 6 GB or more. Therefore end-users can use relatively much data traffic in this subscription, because of which they have the choice to also use other services and applications next to Data-free Music .
76. The ACM is of the opinion that the market position of T-Mobile and the involved providers of content and applications cannot be used to conclude differently than that the service Data-free Music does not undermine the end-users' rights as formulated in the goal of the net neutrality regulation. The service Data-free Music is accessible to all music streaming services regardless of their market position, as long as they adhere to the conditions of public accessibility and recognizability by IP address that T-Mobile imposes. The diversity of music streaming services that thus far are participating in the service Data-free Music proves this as well, for the ACM.