Ofcom Probe EE and Sky Mobile for Possible Breaches of Net Neutrality

Ofcom UK has today said that they’re currently probing two zero rated services from EE (‘Music and Video Passes’) and Sky Mobile (‘Sky Watch’) over possible breaches of the EU’s rules for protecting Net Neutrality (i.e. there must be no serious blocking or slowing of access to legal websites or internet services).

The EU regulation was designed to protect the open internet from abuse (here), which essentially means that broadband ISPs and Mobile operators cannot impose excessive restrictions against internet traffic. Naturally there are some exceptions to this, such as for general Traffic Management and security reasons etc.

In the United Kingdom these rules are applied via a self-regulatory approach (i.e. it may be better to think of them as guidelines), which is governed by the Broadband Stakeholder Group and their 2016 Open Internet Code. This code commits signatory ISPs to neutrality and transparency in traffic management on their networks (details).

The Open Internet Code’s 3 Principles:

* Users should be able to access all legal content.

* There should be no discrimination against content providers on the basis of commercial rivalry.

* Traffic management policies should be clear and transparent.

On top of that Ofcom produces an annual report to the European Commission on their monitoring of the rules, which last year nudged Vodafone, O2 and Three UK to make a number of changes to their services.

Meanwhile this year’s report finds that the rules are still “working well.” As a result they’ve already closed their enforcement programme and are advising providers to follow a new framework to help them “self-assess proactively” (here).

However, we note that the regulator has left the door open on two issues at EE and Sky (Sky Broadband / Mobile), which they’re currently still investigating.

EE Music and Video Passes

EE customers can purchase a monthly “Video Pass” add-on for £8.99 per month. During the month data for the following apps are zero-rated: Netflix, Amazon Prime Vide, BT Sport, MTV Play and TV Player. EE also offers a monthly “Music Pass” add-on for £7.99 per month. During the month data for the following apps are zero-rated: Apple Music, Deezer and Tidal.

EE discussed both its Music and Video Passes with Ofcom before launching. EE explained that both Passes are open platforms and they are working on recruiting new content or application providers for these. Ofcom remains in discussion with EE and we are currently in the process of concluding our initial review.

Sky Watch

Sky Mobile customers who have a Sky TV package can watch Sky TV and use Sky apps without this counting toward their general data allowance. Apps that don’t require a subscription, such as Sky News, are zero-rated for all Sky Mobile customers.

Ofcom is currently reviewing the details of Sky’s offer. Similarly, Sky appears to be zero-rating its own content, which has the potential to affect end-user choice. This will be explored in detail as part of Ofcom’s initial review.

Ofcom has examined similar services before and the regulator has tended not to take action, while in other cases they’ve encouraged operators to make a few changes. As such nobody should be expecting any big punishments from the above and at worst EE and / or Sky may merely need to tweak how they do things.

Much will depend upon the size and scope of these services and whether or not they could materially affect consumer choice, which seems unlikely. A similar zero rated offer on BT Sport TV content from EE was also checked during the period but was waved through after it was found to not be “materially affecting consumer choice.”