Limited room for zero rating under the Regulation
In our appeal, we explain why the interpretation of the ACM (and the BEREC Guidelines) is incorrect, and that the possibilities for zero rating under the Regulation are more limited. According to our interpretation, T-Mobile’s offer is not allowed.
According to the ACM and BEREC it is allowed in principle to not charge network traffic of a general service category (e.g. music streaming services), subject to certain conditions. All propositions in which zero rating is applied, have to be assessed on a case by case basis, according to the ACM and the BEREC Guidelines.
In the specific case of the “Datafree Music” service, the ACM is of the opinion that T-Mobile is not breaking the rules. In short, the ACM considers that T-Mobile treats all music streaming services equally because the same conditions apply for each of them. T-Mobile is therefore said to not discriminate.
However, we argue that the room for zero rating is much more limited under the Regulation than the ACM (and BEREC) supposes. It is not allowed to differentiate between services and to treat internet traffic differently (for commercial reasons) if this happens on the basis of the sender or receiver, the content to which access is requested or which is distributed, the used or provided applications or services, or the terminal equipment (Article 3(1) and 3(3) Regulation).
When following this interpretation, zero rating of internet traffic based on a time of day (e.g. during off-peak hours) and in an application agnostic manner would be allowed, but based on a category of applications or services that are self-determined by the internet provider, it wouldn't. The Regulation allows only for application-agnostic zero rating.
Under this interpretation, reasonable traffic management measures are still possible, as long as they are non-discriminatory and proportionate, and are not commercially based (see Article 3(3) Regulation). During peak hours, traffic of video streams could still be prioritized over email traffic.