By D3 Defesa dos Direitos Digitais

In 2018, the Portuguese telecom regulator ANACOM told the three major Portuguese mobile Internet Service Providers (ISPs) to change offers that were in breach of EU net neutrality rules. Among other things, the regulator recommended that ISPs publish their terms and conditions, and increase the data volume of their mobile data packs in order to bring it closer to their zero-rating offer. In Portugal, average mobile data volumes are small, yet among the most expensive in Europe. ANACOM’s net neutrality report that was published in June 2019 reveals how the ISPs reacted to the regulator’s intervention.

While operators have complied with ANACOM’s decision on differential treatment of traffic after the general data ceiling has been exhausted, that was as far as they went. Regarding the increase of data volume, all three major operators simply ignored ANACOM’s demand. None of them changed their offers. One of the operators claimed, instead, that “the current ceiling is adjusted to the demand”.

Then, ANACOM had asked the ISPs to publish the terms and conditions under which other companies and their applications can be included in the their zero-rating packages. The result: All operators ignored this recommendation, too.

Surprisingly, the regulator’s reaction was lukewarm, at best. Instead of strongly criticising the ISPs for not complying to its recommendations, it stated that it “will continue to monitor all matters concerning these recommendations”, and that this will be followed up with “further analysis in the context of net neutrality […]”.

Portuguese EDRi observer D3 Defesa dos Direitos Digitais regrets the lack of will and courage on the part of ANACOM to put an end to the harmful practices of ISPs. Zero-rating harms consumers and free competition by tilting the playing field in favour of a few selected, dominant applications, and it constitutes a threat to a free and neutral internet. By not acting against price discrimination practices between applications and restricting its action to technical discrimination of traffic, ANACOM shows no intention to act on the underlying problem of zero-rating offers.

The result is that in Portugal, mobile data volumes are on average small, and the prices are among the highest in Europe. Users suffer from an over-concentrated market – three major ISPs share 98% of the market. In this setting, the leading companies can afford to ignore the regulator’s public recommendations without practical consequences. The legislator has not introduced the fines for net neutrality infringements that are mandatory under EU law since 2015.

This article is an adaptation of an article published at:
https://en.epicenter.works/content/zero-rating-in-portugal-permissive-regulator-allows-isp-to-get-away-with-offering-some-of

D3 Defesa dos Direitos Digitais
https://www.direitosdigitais.pt/

epicenter.works
https://en.epicenter.works/

Portuguese ISPs given 40 days to comply with EU net neutrality rules (07.03.1018)
https://edri.org/portuguese-isps-given-40-days-to-comply-with-eu-net-neutrality-rules/

Civil society urges Portuguese telecom regulator to uphold net neutrality (23.04.2018)
https://edri.org/civil-society-urges-portuguese-telecom-regulator-uphold-net-neutrality/

(Contribution by Eduardo Santos, EDRi observer D3 Defesa dos Direitos Digitais, Portugal)