Ofcom Probe Three UK and Vodafone Over Net Neutrality Concern

The telecoms regulator has today opened a new investigation to examine whether some of the new 4G mobile plans and add-ons being offered by Three UK and Vodafone are compliant with the EU’s new Net Neutrality rules, which are designed to protect the open internet from abuse.

The rules (guidelines here) essentially mean that broadband ISPs and Mobile Network Operators (MNO) cannot impose excessive restrictions against Internet traffic (e.g. no serious blocking or slowing of access to legal websites or internet services), except for things like general Traffic Management and security etc.

In the United Kingdom these rules are generally applied via a self-regulatory approach, which was established by the Broadband Stakeholder Group (BSG) and their 2016 Open Internet Code. This code commits signatory providers to neutrality and transparency in traffic management on their networks (details), which is embodied by three core principles.

The Core Principles
* Users should be able to access all lawful content.
* There should be no discrimination against content providers on the basis of commercial rivalry.
* Traffic management policies should be clear and transparent.

However Ofcom’s on-going enforcement programme (here), which was setup after the new rules were introduced, has today raised a number of concerns about several Three UK and Vodafone services or practices that could potentially be incompatible with the aforementioned rules.

Focus of the Probe

The investigations will examine the following:

Three UK’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.

Mobile operator Three UK are known for only allowing Tethering on their ‘Advanced’ plans (i.e. their Essential plans do not allow Tethering) and they tend to restrict this via a so-called ‘Personal Hotspot’ allowance, which can be set at a lower data cap than the main tariff (e.g. their 100GB and ‘all-you-can-eat-data’ plans both come with a 30GB capped tethering / hotspot allowance). Not to mention their ‘Go Binge‘ zero rating for Netflix etc.

Likewise Three UK are also known to use Traffic Management on certain services (they call this TrafficSense), although the details of how they apply this tend to be quite vague but it can impact P2P file-sharing and VPN services (especially when EU roaming). The rules do allow for some general traffic management but it’s still possible to fall foul.

Meanwhile Vodafone recently launched a new range of OPTIONAL ‘Passes‘ (here) for Pay Monthly subscribers, which means you pay a set fee and then can enjoy “endless” data usage of certain specific apps via your Smartphone (e.g. Facebook Messenger, WhatsApp, Spotify and Viber etc.); although they cap each pass at 5GB when EU roaming.

The Net Neutrality rules do not outright prohibit zero-rating usage like the the above, although Ofcom is still expected to ensure that operators’ do not undermine the goals of the regulation (i.e. the context of the service is very important, such as the size of an operator, scale / impact of any related features and how long they’ve been available). In other words, small operators and short lived services / features are less likely to attract concern.

The guidelines for all this can be quite flexible and as such we suspect that Vodafone and Three UK won’t, at this stage, be too concerned by the regulator’s investigation. Ofcom said they intended to publish a further update in June 2018.

UPDATE 2:12pm

A spokesperson for Three UK has told us that they’ll be “working closely with Ofcom to understand their concerns,” while Vodafone went a bit further.

A Vodafone UK Spokesperson told ISPreview.co.uk:

“We are very disappointed with Ofcom’s decision to target Vodafone Passes.

Our Passes allow customers to access their favourite content without fear of running out of data or attracting out of bundle charges. They are open to any content provider of video, music, chat and social. 22 content providers have signed up so far, ensuring Vodafone customers can enjoy the widest selection of worry-free access to content across the industry.

Vodafone does not “throttle” speeds on Vodafone Passes, either in the UK or while customers are roaming. The Video Pass is optimised so that all of our customers have a high quality experience when streaming content on the network. Optimising means making the bandwidth available that enables videos to be delivered in a faster, more efficient way, while still providing the best smartphone viewing experience, and without compromising the experience of other customers who do not use a Vodafone Pas
s.
We developed Vodafone Passes in direct response to customer feedback and have provided clear information to customers about how they work. We will be explaining all of this to Ofcom during the course of their investigation.”