Own-initiative enforcement programme into fixed and mobile Internet Service Provider traffic management measures, and other practices covered by the EU Open Internet Access Regulation

08 May 2018

Complainant: Own-initiative enforcement programme
Investigation against: Internet Service Providers (ISPs)
Case opened: 6 December 2017
Issue: ISP traffic management practices, including those relating to mobile roaming, and other ISP practices covered by the EU Open Internet Access Regulation 2015
Relevant Instruments: Regulation (EU) 2015/2120 laying down measures concerning open internet access (the “EU Open Internet Access Regulation 2015”); 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 Commission Implementing Regulation (EU) 2016/2286 laying down detailed rules on the application of a fair use policy (the “CIR”).

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. For more information and future updates on this investigation please see: https://www.ofcom.org.uk/about-ofcom/latest/bulletins/competition-bulletins/open-cases/cw_01218

Update note 6 March 2018

Following an assessment of evidence gathered under this enforcement programme, Ofcom has decided to open investigations into Hutchison 3G UK Limited (Three) and Vodafone Limited (Vodafone) to assess their compliance with the EU Open Internet Access Regulation 2015 .

The investigations will examine the following:

Three’s practices of:

  • Restricting tethering – the practice of using one device to connect another one to the internet - on certain plans offered by Three;
  • 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; and
  • 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), including where traffic management is applied when customers are roaming.

In relation to Vodafone:

  • Traffic management practices relating to ‘Vodafone Passes’ – e.g. throttling particular categories of traffic – including where traffic management is applied when customers are roaming; and
  • The transparency of exceptions to zero rating within the ‘Vodafone Passes’ products, which mean that certain functions within certain zero-rated applications will use customers’ general data allowance and not be zero-rated.

We are continuing to review the information gathered from other fixed and mobile internet service providers under this programme. We expect to publish a further update on both investigations and any other relevant work under this programme in June 2018.

End of update note

The ‘open internet’ is the principle of ensuring that web users control what they see and do online – not the broadband provider that connects them to the internet. It’s about people being free to access all lawful internet content equally, without broadband providers discriminating against particular services or websites.

Under EU regulations, which came into effect on 30 April 2016, broadband providers must treat all internet traffic on their networks equally, and must not give preferential treatment to any particular sites or services.

Providers may, however, use certain reasonable measures to manage their internet traffic, to ensure their networks run efficiently. But they must be clear and transparent about their traffic management policy and practices. These traffic management measures must be based on technical quality of services reasons, and cannot be used for longer than necessary.

The EU Open Internet Access Regulation 2015 requires Ofcom to monitor and ensure UK providers comply with these rules. Ofcom is opening the programme in fulfilment of that obligation. Whilst we have been informally monitoring ISP traffic management practices since even before the Regulation became effective, the programme will focus on gathering further information to assess whether any ISP traffic management practices raise specific concerns under the EU Open Internet Access Regulation 2015. We may also consider any compliance concerns in relation to other practices covered by the Regulation under this programme.

Should we identify specific issues, we may initiate separate investigations of named providers and take enforcement action against them if appropriate. Where we do so, these will be announced via our Competition and Consumer Enforcement Bulletin.

We aim to publish a further update on this programme by June 2018.

Case leader: Ruth John (email: ruth.john@ofcom.org.uk)
Case reference: CW/01210/12/17