T-Mobile treats everyone equally unequally

The Dutch national regulatory authority, Authority for Consumers & Markets (ACM), has again decided that the mobile operator T-Mobile does in fact respect European net neutrality rules. EDRi-member Bits of Freedom believes the decision of ACM is short-sighted.

On 8 February 2018, the regulatory authority published its decision on our objection to its decision on our request for enforcement action against T-Mobile’s service “Data-free Music”. This service was launched shortly after the new European net neutrality rules were introduced. “Data-free Music” allows users to listen to a selection of online music services without using any data from their data plan. This sounds better than it is – and below we explain why. Bits of Freedom asked ACM to enforce the rules because with this service, T-Mobile gives some services preferential treatment. The regulatory authority did not agree with Bits of Freedom. Now, it has also dismissed Bits of Freedoms’ objection to this decision.

ACM thinks T-Mobile treats all online music services equally. For all these services, “the same conditions for joining” apply and therefore T-Mobile is said to not discriminate. This includes the conditions that only online services that are “publicly accessible” and that allow T-Mobile to recognise the IP-address of the service can join.

The conditions T-Mobile sets clearly put certain service providers at a disadvantage, simply because services that do not meet these conditions cannot benefit from the preferential treatment T-Mobile offers. If your online music service is not a public service, tough luck. If your online music service uses peer-to-peer technology, tough luck.

This can’t be what we want: after all, we want similar services to be treated equally. Imagine that T-Mobile decides that only music services with a red logo and at least ten users in the Netherlands may join “Data free Music”. Those conditions hold for all providers. According to the line of reasoning of ACM, those conditions would not be discriminatory. They thereby, however, ignore that certain types of services are excluded on the basis of the very nature of that service or its provider.

Making such a distinction is only allowed if it does not limit the freedom of the end user. For instance, if you were to prioritise video streaming traffic – regardless of the service – over email traffic – regardless of the service.

The European net neutrality rules also aim to ensure “the functioning of the internet ecosystem as a driver for innovation”. However, if providers favour certain services, they limit the freedom of all internet users and hamper innovation. In Europe, a proliferation of different types of subscriptions can already be seen. A brief survey shows that over thirty subscriptions are available that feature zero-rating. In its first decision, the ACM has failed entirely to take this into account.

In their second decision, ACM says that they do not need to look into “the cumulative effect of all zero-rating propositions in Europe” and that the impact of T-Mobile’s service in and of itself is not that large. However, even if this statement was legally valid, it would imply that the European rules are inadequate.

There is a good chance that Bits of Freedom will also challenge ACM’s latest decision. Your freedom online is too important to leave it in the hands of a regulatory authority with tunnel vision. The next step would be to go to the judge. This leaves two possible outcomes: either the judge agrees with the complaint and calls ACM to order, or it becomes clear that the European net neutrality rules need to be further strengthened. Either enforcement becomes stricter, or the rules become stricter. Another battle in Brussels that might take years is already being prepared.

T-Mobile treats everyone equally unequally (only in Dutch, 08.02.2018)
https://www.bof.nl/2018/02/08/t-mobile-behandelt-iedereen-even-ongelijk/

Dutch NRA: T-Mobile may continue to violate net neutrality (18.10.2017)
https://edri.org/dutch-nra-t-mobile-may-continue-to-violate-net-neutrality/

Dutch ban on zero-rating struck down – major blow to net neutrality (17.05.2017)
https://edri.org/dutch-ban-on-zero-rating-struck-down-major-blow-to-net-neutrality/

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