The ACM has forbidden T-Mobile's 'Datavrije Muziek' offer, but the service is still available while T-Mobile pursues a court appeal. The regulator thinks the offer of zero-rated data for music streaming is a violation of net neutrality. However, the operator claims that EU rules leave room for zero-rating. The court in Rotterdam has been asked to give an opinion, in an accelerated procedure. The ACM had told T-Mobile to stop the service by 10 January 2017, but it's not yet known when the court will hear the case.
Datavrije Muziek is an add-on introduced by T-Mobile Netherlands in October 2016. It allows customers with a data bundle of at least 6 GB per month to use music streaming without the associated data being deducted from their monthly allowance.
Net neutrality: room for interpretation
The debate is complicated as it's being conducted on several levels:
- What is net neutrality (NN) and should be it be defended in law?
- What is zero-rating and does it violate NN?
- What do the EU rules say and how much can national regulators diverge from this?
This case is not about 1) or 2) but 3), and in that sense the ACM appears to have won the case already, if it has an adequate defence. T-Mobile NL can claim customers benefit (they pay less) and that it doesn't harm providers (all music providers can participate, 19 do so already), but this is not relevant. The ACM points to the damage zero-rating can cause competitors of major players such as Spotify and YouTube, but this also misses the point. The Dutch parliament discussed the matter extensively and enshrined a ban on zero-rating in law.
The statements from both parties focused on zero-rating. The central issue is how much room the EU regulation on net neutrality leaves for national regulators to diverge from net neutrality and allow zero-rating. The regulation names this specifically, but leaves room for each country to judge on its own. If the ACM uses this room to forbid zero-rating, then it's only enforcing what Dutch law prescribes: a strict ban on zero-rating. T-Mobile NL is likely to claim in the court in Rotterdam, if not at the corporate appeals court that the Dutch law goes against the EU regulation, and the Dutch are going beyond what the EU (and Berec) intended.
If T-Mobile's argument wins the day, the next step could be the European Commission starting an infringement procedure against the Netherlands. To be continued.
