Rethinking zero-rating rules

The body of European regulators, BEREC, reviewed and updated its guidelines for the open internet, with a particular focus on zero-rating tariffs. Stakeholders have until 14 April 2022 to submit their comments.

BEREC updated the guidelines following game-changing judgements of the Court of Justice (ECJ) on zero-rating from 2 September 2021. What does zero-rating mean in practice? Any offering when your operator gives you unlimited access to music, video or social networks within your tariff.

The European Union adopted the open internet regulation back in 2015. It established common rules for equal and non-discriminatory treatment of traffic. That should contribute to better protection of both content providers and end-user rights.

The Body of European Regulators for Electronic Communications, BEREC, adopted guidelines for the implementation of the EU’s open internet regulation. This should help national regulators to apply the same principles in assessing whether an internet provider’s practice is discriminatory or not.

BEREC first published the net neutrality guidelines in 2016. In 2020, the guidelines on the implementation of the open internet regulation followed.

The 2022 guidelines consultation process began in October 2021 with the call for stakeholder input. That was very shortly after the court published its rulings. According to these rulings, Telekom Deutschland and Vodafone violated the open internet regulation by their zero-rating offers. You can find more details in this article.

No more zero-rating

Zero-rating tariffs are incompatible with the obligation of equal treatment of traffic.

BEREC covered this specific aspect in the chapter on differentiated pricing practices. Differentiated pricing practices include both permissible and inadmissible practices. It will be important that the national regulators distinguish between those two.

BEREC in its draft guidelines considers zero-rating tariffs a subset of inadmissible practices. The pricing must not distinguish between applications. In other words, it must be application-agnostic. In practice that would mean that the operator may offer differentiated pricing, e.g. in certain periods of the day, for certain promotional time, for various speed profiles or for various user groups, BUT the same rules would apply for any application.

Since the zero-rated tariffs are very popular not only with operators but also with users, the more now when the subscription fees go up, it will be very interesting to follow the developments. What will be the fate of unlimited music, video, chat and social networks? Let’s stay tuned, follow the BEREC consultation and wait for the final version of the updated guidelines.

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