Court follows regulatory authority
Last year we appealedReasons why went to court appealed the decisionPress release about the decision of the national regulatory authority 'Authority for Consumers and Markets (ACM) not to to act against the 'Data-free Music' service by T-Mobile. The administrative court of first instance ruledJudgment of the court (Dutch) in favor of T-Mobile: it does not violate the net neutrality rules and the ACM does not have to act.
Unfortunately, due to procedural reasons, the court does not get to a substantive judgment on the first part of our appeal. We argued, in short, that the European net neutrality rules prohibit the preferrential treatment of traffic from certain services by not charging this traffic to users.
The court defers to its previous judgmentPrevious judgment between ACM and T-Mobile (Dutch) about this service in a case between T-Mobile and the ACM. In that judgment it ruled that the prohibition on unequal treatment of traffic is limited to the technical treatment of traffic. The economic treatment of traffic is not covered by this norm, according to the court. The court considers this ruling to also bind the court in our case.
In our view, this limited reading of the European net neutrality rules is incorrect. The non-discrimination principle contained therein applies to the treatment of traffic, regardless of whether that treatment involves delaying or blocking traffic or applying a different price for traffic. It is true that certain forms of differential technical treatment of traffic (‘traffic management’) are admissible under the Net Neutrality rules, but this does not automatically mean that the general standard to treat traffic equally is limited to the technical treatment of traffic only.
In the second part of our appeal, we explain why the zero rating service ‘Data-Free Music’ limits the rights of end users and is therefore in violation of the Net Neutrality rules. An essential part of net neutrality is that you determine yourself which information, services or applications you use or offer via the internet, without interference by your internet access provider. T-Mobile is exactly doing that with its zero rating service: it influences how certain services are treated for economic reasons. The ACM did not agree with us and the court of first instance unfortunately upheld ACM's decision.