Own initiative investigation into Hutchison 3G UK Limited (Three)’s compliance with the net neutrality and roaming regulations

02 August 2018

Complainant: Own-initiative investigation
Investigation against: Hutchison 3G UK Limited (Three)
Case opened: 6 March 2018
Case closed: 1 August 2018
Issue: Three’s traffic management practices, including those relating to mobile roaming, and other practices covered by the EU Open Internet Access Regulation
Relevant Instruments: Regulation (EU) 2015/2120 laying down measures concerning open internet access (the “EU Open Internet Access Regulation”); Regulation (EU) No. 531/2012 on roaming on public mobile communication networks within the Union, as amended by Regulations (EU) 2015/2120 and (EU) 2017/920 (the “Roaming Regulation”); and the related Commission Implementing Regulation (EU) 2016/2286 laying down detailed rules on the application of fair use policies (the “CIR”).

Update note 2 August 2018

Ofcom has now concluded this investigation, having secured written assurances from Three that it has made changes to its tethering and traffic management practices to address our concerns with its compliance with net neutrality and roaming rules.

Since we opened our investigation in March 2018, Three has confirmed that it has already:

  • withdrawn restrictions which slowed down speeds of Peer-to-Peer and Virtual Private Network traffic for customers when roaming within the EU; and
  • withdrawn restrictions on the use of handset SIMs in dongles and mifis.

Three has also confirmed that, from December 2018 (or earlier), it will:

  • cease to restrict video quality to Standard Definition when its customers are roaming in the EU;
  • remove any specific tethering or hotspot allowance for new or upgrading customers, to allow for unrestricted tethering (within the UK or EU);
  • remove any requirements for customers to purchase a Data Passport to tether when roaming in the EU;
  • allow customers on all Advanced Plans to tether without restriction; and
  • allow customers on Essential Plans to tether on their current plan, or to migrate to the nearest equivalent Advanced Plan available at that time.

Based on the information gathered and the assurances received from Three, we are satisfied that there is no need for further action at this time and have decided to close the investigation.

The EU Open Internet Access Regulation, among other things, enshrines ISP customers’ fundamental right to access the content and information, to use the applications and services, and to use the terminal equipment of their choice through their internet access service through their internet access service. ISPs may enter into agreements with their customers on the commercial and technical conditions of the service, but in doing so they cannot limit customers’ core rights. The Regulation permits ISPs to employ “reasonable” traffic management practices, but in order to qualify they must be proportionate, transparent, based on technical quality of services requirements (rather than commercial considerations), and be in place no longer than necessary. ISPs may not engage in any other form of traffic management – such as blocking, throttling, altering, restricting, interfering with, degrading, or discriminating between content, applications, and services, or categories of them - except under narrowly defined circumstances.

A fundamental principle of the Roaming Regulation and the CIR is that customers should receive the same experience when roaming periodically in the EU as they do in the UK at no additional cost and on the same terms and conditions.

The principles from these Regulations require telecoms providers to:

  1. allow customers to access communications services under the same conditions when roaming in the EU as when they consume those services at home in the UK;
  2. treat equivalent traffic equally within the UK and when roaming in the EU; and
  3. allow customers to connect (or “tether”) to the internet using equipment of their choice (e.g. create a personal hotspot with their mobile phone so they can connect their laptop or tablet to the internet) and to use their full data allowance to do this.

We note that even though Three had explained its tethering and traffic management restrictions to its customers, this was not sufficient to address our compliance concerns under the Regulations. We therefore required Three to make further changes to its practices. As a result of the information provided by Three, and the assurances it has given to Ofcom in respect of the potential compliance concerns identified, Ofcom has closed down its investigation.

We note that Three has reserved the right to re-introduce traffic management measures in the future in so far as permitted by the Regulations. If it does so, Ofcom would expect Three to assess whether its practices meet the necessary regulatory requirements, and Ofcom would do the same.

We have also today issued an update note on Ofcom’s enforcement programme and have closed our investigation into Vodafone.

Update note 8 May 2018

We have revised the scope of this investigation to include the Roaming Regulation and the related CIR in addition to the EU Open Internet Access Regulation. The investigation will examine Three’s practices of:

  • Traffic management practices such as ‘throttling’ or intentionally slowing down particular categories of traffic (e.g. video traffic, Peer-to-Peer and Virtual Private Network traffic) when customers are roaming;
  • Restricting tethering – the practice of using one device to connect another one to the internet – on certain plans offered by Three, including when customers are roaming; and
  • Imposing restrictions on the devices in which a SIM can be used – e.g. where a SIM purchased for a mobile phone cannot be used in a tablet.

We are aiming to complete our evidence gathering phase in this investigation by July 2018.

End of update note

This investigation was opened on 6 March 2018 following an assessment of evidence gathered under Ofcom’s enforcement programme into fixed and mobile Internet Service Provider traffic management measures, and other practices covered by the EU Open Internet Access Regulation.

Case leader: Camille Seldon (email: camille.seldon@ofcom.org.uk)
Case reference: CW/01218/04/18