August 19, 2022

European telecom regulator BEREC has updated its net neutrality guidelines to include a strict ban on zero-rating practices that exempt specific apps or categories of apps from data caps imposed by Internet service providers.

The document published Tuesday provides guidance to national regulatory authorities on their “obligations to closely monitor and ensure compliance with the rules to safeguard equal and non-discriminatory treatment of traffic in the provision of Internet access services and related end-users’ rights.” BEREC stands for Body of European Regulators for Electronic Communications.

“Despite intense lobbying from big carriers and giant platforms, BEREC voted to clearly ban zero-rating offers that benefit select apps or categories of apps by exempting them from people’s monthly data caps,” Stanford Law Professor Barbara van Schewick wrote. “The ban applies whether the app pays to be included or not, closing a loophole in the draft guidelines.”

While Europe strengthens its net neutrality regime, the US hasn’t had any federal net neutrality rules since they were removed under former Federal Communications Commission Chairman Ajit Pai. The FCC won’t be re-imposing net neutrality rules any time soon because it still has a 2-2 partisan deadlock, and President Biden’s nomination of Gigi Sohn has languished in the Senate.

However, the European zero-rating ban is similar to one enforced in California. US-based Internet providers last month abandoned their attempt to block the California law after a string of court losses. When it comes to zero-rating, the California law is stricter than the FCC rules that Pai repealed.

ISPs took advantage of lax rules

The new BEREC guidelines came in response to a September 2021 Court of Justice ruling that “zero tariff” options that distinguish between types of Internet traffic “on the basis of commercial considerations” violate Europe’s Open Internet rules requiring “equal treatment of traffic, without discrimination or interference.”

In the new guidelines, BEREC said it “considers any differentiated pricing practices which are not application-agnostic to be inadmissible for IAS [Internet access service] offers, such as applying a zero price to ISPs’ own applications or CAPs [content, applications, and services] subsidizing their own data.” Additionally, a “price-differentiated offer where all applications are blocked (or slowed down) once the data cap is reached except for the application(s) for which zero price or a different price than all other traffic is applied would infringe” European rules, BEREC said. The rules apply to both mobile and fixed Internet service.

Van Schewick explained that “BEREC’s previous net neutrality guidelines did not categorically ban selective zero-rating programs or category-based ones that, e.g., offer to zero-rate all music or video apps. So carriers across the EU took advantage and collectively launched hundreds of zero-rating programs. These often exempted the carriers’ own services and disproportionately benefited big platforms like Apple, Google, and Facebook, while small companies and European startups were left out.”

While “many European carriers offer plans that don’t count the data you use on Facebook or WhatsApp against your data cap,” van Schewick predicted that “carriers across the EU will soon end their discriminatory zero-rating plans and offer customers of those plans significantly more data for the same price.”

Non-discriminatory zero-rating will still be allowed, meaning that a carrier can exempt all data usage from a cap “at certain times of day or as a promotion; it just can’t force you to use that data on a specific site,” van Schewick wrote.

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