The regulator has moved before new guidelines from BEREC are finalised. Zero-rating now look set to be a forgotten practice across the EU
BNetzA takes a U-turn: The German regulator BNetzA has asked Deutsche Telekom and Vodafone to stop marketing their zero-rated offers StreamOn and Vodafone Pass, respectively. The decision follows the September 2021 ruling of the European Court of Justice, which found zero-rating to be incompatible with Europe’s Open Internet Regulation because it discriminates between different types of internet traffic based on commercial considerations. By making this order, BNetzA is overturning its decisions of December 2017 and June 2018, when it allowed the two operators to market those offers as long as customers could access the relevant content while roaming in the same way as in Germany. The two operators have until 1 July to stop offering those tariffs, and until 31 March 2023 to migrate existing customers to other options.
BEREC’s guidelines will end zero-rating in the EU: BNetzA’s U-turn on zero-rating comes before BEREC finalises its revised guidelines on net neutrality, which are expected in June. The draft version of BEREC’s new guidelines leaves almost no room for zero-rating (except for cases where operators have to comply with legislation or measures taken by public authorities) significantly limiting operators’ freedom in their commercial practices compared to what’s been possible until now. Some stakeholders tried to persuade BEREC that zero-rating could be classified as a form of differentiated billing rather than traffic management, while others suggested that zero-rating of entire categories of services could still be possible. However, BEREC has seen little room for interpretation of the ECJ’s ruling. While the guidelines are not yet final, BEREC has already warned the industry that there will be no significant changes, and encouraged operators to start adjusting their tariffs.
A challenge to the rules could come in 2023 but markets will have moved on: BEREC’s stance has left operators hard done by. While some of them have signalled they are prepared to fight back, they will struggle to convince BEREC to depart from the ECJ’s interpretation of the Regulation. Even if they did succeed, the new guidelines wouldn’t be shielded by future rulings of the ECJ restating that zero-rating is not permitted. At this stage, operators’ best hope is to obtain amendments to the Regulation in 2023, when the European Commission is due to review it. But by that point, it might be a lost cause. In its statement, BNetzA said the demise of zero-rating could have a positive effect for consumers in the form of higher data volumes and cheaper flat rates – from that point there doesn’t seem any way back for zero-rating within the EU.
