Complainant: Own-initiative investigation
Investigation against: Vodafone Limited (“Vodafone”)
Case opened: 6 March 2018
Case closed: 1 August 2018
Issue: Vodafone’s traffic management practices, and other practices covered by the EU Open Internet Access Regulation
Relevant Instrument: Regulation (EU) 2015/2120 laying down measures concerning open internet access (the “EU Open Internet Access Regulation”)
Update note 2 August 2018
Ofcom has today closed its investigation into Vodafone’s compliance with net neutrality rules in respect of its Vodafone Passes products, having received written assurances from Vodafone that it has stopped restricting video quality to Standard Definition in these products.
Vodafone Passes are “zero-rated,” meaning that the data subscribers consume to access and use applications offered in the product packages is not counted toward their general data cap. However, there are certain functions within some applications included in the Passes (such as making voice calls from within a Passes messaging service) that are not zero-rated; data consumed to use those functions then counts towards the subscribers’ general data allowance. The transparency of these exceptions was another concern in the investigation. In order to address our concerns, Vodafone has also agreed that it will maintain at all times accurate information about these exceptions, and will send a text message with a link to this information to subscribers when they activate their Pass.
During the investigation, we also identified concerns with potential restrictions on tethering (for example, using a smartphone to connect a computer or tablet to the internet) for the products under consideration, but Vodafone has clarified that it does not impose restrictions and is clarifying that in its messaging to consumers.
The EU Open Internet Access Regulation (the 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. ISPs may enter into agreements with their customers on the commercial and technical conditions of the service, and the characteristics of it, but in doing so ISPs cannot limit customers’ core rights. The Regulation permits ISPs to employ certain reasonable traffic management measures, but in order to qualify they must be proportionate, transparent, based on technical quality of service requirements (rather than commercial considerations), and 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.
We note that even though Vodafone was transparent about its optimisation practice, this was not sufficient to address our compliance concerns under the Regulation. We were concerned, among other things, that the practice did not appear to be based on objective technical quality of service reasons, and was in place permanently. We note that Vodafone has reserved the right to re-introduce video optimisation in the future in accordance with the Regulation. If it does so, Ofcom would expect Vodafone to assess any such practice against the regulations, and Ofcom would do the same.
As a result of the information provided by Vodafone, and the commitments it has given to Ofcom in respect of the potential compliance concerns identified, Ofcom has closed down its investigation.
Ofcom evaluated aspects of the zero-rated products, other than traffic management measures and the transparency of them, for compliance with the Regulation outside the context of the formal investigation. Ofcom considered whether the offers had the potential to influence customer rights under the Regulation, and if so, whether the offers create a situation where customer choice is materially reduced or adversely affected in practice. Ofcom noted that the offers work only when subscribers have a general data allowance available, and that Vodafone has an open process for other content and application providers to join the zero-rated scheme. These elements were among those that led Ofcom to provisionally conclude that the offers, as configured at the time we reviewed them, did not materially reduce or adversely affect consumer choice.
We have also today issued an update note on Ofcom’s enforcement programme and have closed our investigation into Three.
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: Ruth John (email: firstname.lastname@example.org)
Case reference: CW/01219/04/18