By Bits of Freedom

EDRi member Bits of Freedom asked the Dutch national regulatory authority, Authority for Consumers and Market (ACM), to test the mobile operator T-Mobile’s subscription against the new European rules that protect net neutrality, to verify whether its “Data-free Music” service infringes upon the principle of net neutrality. On 11 October 2017, the ACM ruled T-Mobile to be compliant with the law. Bits of Freedom disagrees and will challenge this decision.

The ACM states in its decision that T-Mobile does not discriminate against music services, “as long as they comply with the conditions that T-Mobile imposes” – which is exactly the problem! T-Mobile is imposing all kinds of conditions upon these music services and therefore decides which ones are entitled to preferential treatment. For example, if a music service does not want T-Mobile to use its logo, they are out of luck. If the music service is not able or willing to structure its systems to the whims of T-Mobile, they are left out in the cold.

The ACM also thinks that the freedom of the music service providers or consumers is not being constrained. That is hardly surprising when you realise that the ACM seems to have no regard for the impact of services like Data-free Music on the innovative nature of the internet. One of the powerful properties of the internet is precisely that every computer, and therefore every service and user, is as easy to reach as any other. A service like T-Mobile’s flies in the face of that idea by giving some services preferential treatment.

Based on the text of its decision, the ACM has also not taken into account what other operators will do if this is allowed and how that will impact the freedoms of internet users.

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With this decision, the ACM undermines the innovative power of the internet for all of Europe. Because of the leading role that the Netherlands has played for years in the field of net neutrality, everybody in Europe is looking at enforcement in the Netherlands. In the rest of Europe, several supervisors are looking into similar subscriptions at other operators. But they have not ruled yet, waiting for the ACM’s decision. The fact that the ACM did not strictly enforce the principle of net neutrality is a missed opportunity. Bits of Freedom will challenge this decision.

Bits of Freedom has advocated for net neutrality for more than seven years. The Netherlands was the first in Europe to anchor net neutrality into law, in 2012. Since the end of 2015, similar rules hold for all of Europe. Since then, operators have been constantly testing the limits of these rules. T-Mobile did this with the Data-free Music service, among other things. Earlier, ACM already ruled that this service is out of line with the Dutch interpretation of these European rules. T-Mobile went to court over this and won. Bits of Freedom then filed an enforcement request. On 11 October 2017, the ACM decided on the request.

If you get access to the internet, you should get access to the entire internet. You, and not your operator, should get to decide what you do on the internet. A service like Data-free Music, a subscription in which music services can provide you with music without expending your data plan, sounds like a great offer: listening to Spotify on your mobile phone without a risk of running out of data or paying more. And for the short term, it could be. But if operators offer one or more services at a cheaper price than their competitors, this yields an unfair advantage, taking away the opportunity for competitors and newcomers to compete for customers on their own merit.

T-Mobile’s subscription only works with a small number of music services. If a provider can’t or won’t comply to T-Mobile’s conditions, they will be left out. Even though T-Mobile claims that every service can participate, the reality is more of a problem: months after the introduction, only a handful of music services have joined.

Dutch NRA: T-Mobile may continue to violate net neutrality (11.10.2017)
https://www.bof.nl/2017/10/11/dutch-nra-t-mobile-may-continue-to-violate-net-neutrality/

T-Mobile may continue with Data-free Music (only in Dutch, 11.10.2017)
https://www.acm.nl/nl/publicaties/t-mobile-mag-dienst-datavrije-muziek-de-lucht-houden

(Contribution by EDRi member Bits of Freedom, the Netherlands)

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