Ofcom investigates Three and Vodafone over net neutrality complaints

Three and Vodafone have found themselves on the wrong side of an Ofcom net neutrality investigation following complaints made against the pair back in December.

The results of this investigation will not be available until June, however Ofcom is concerned the duo may have violated net neutrality regulations focused on tethering for Three, and a lack of transparency when it comes to zero-rated offers for Vodafone. While this is a debate which has raged over in the US, European markets have been relatively quiet; could this be the beginning of a new saga?

“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,” Ofcom said in a statement. “It’s about people being free to access all lawful internet content equally, without broadband providers discriminating against particular services or websites.

“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.”

Looking specifically at the violations, Three has raised concerns over whether it has been throttling traffic when a user has been tethering one device to another and while the user is roaming, as well as restricting the devices in which its SIMs can be used.

In terms of Vodafone, the investigation will focus on ‘Vodafone Passes’. Firstly, there is a concern that certain categories of traffic are being throttling, perhaps when a customer is roaming, and secondly the transparency of the zero-rating features. For the latter, Ofcom will be having a look at whether Vodafone has effectively communicated what aspect of an app fall under the zero rating conditions and which ones do not. Of course, it would be a huge problem for Vodafone if it has been telling customers false or misleading information.

Under European regulations telcos must treat all internet traffic on their networks equally and must not discriminate or reward any particular websites or services. The problem remains with the grey areas however. Under the same regulations, telcos are granted reasonable measures to manage their internet traffic to ensure networks run efficiently. When these restrictions are applied, the telco must be transparent about it. It is all about accountability, but the dreaded wiggle room has appeared again.

Net neutrality has been a hot debate over in the US after FCC Chairman Ajit Pai eradicated net neutrality regulations in favour of the wild west were telcos have few (if any) limitations on whether they are able to favour or restrict traffic on their networks. Several states are attempting to introduce state-specific net neutrality laws, Washington was the first to do so this week, to prevent the telcos having too much control.

This is of course an incredibly complicated debate, as while the telcos should not be granted the power to hold the internet to ransom they do have to be given the opportunity to make money. As it stands across the world, the telcos are the ones putting up the CAPEX to build networks, but the OTTs are the ones collecting the rewards from the digital economy. Add in the fact that OTTs have also destroyed the telcos business models through offering free calling and messaging services, you have to have some sympathy for the telcos. They are spending all the money and getting none of the reward.

The argument of net neutrality is a lot more complicated over in the US mainly due to the availability of operators. We might have choice on service providers in Europe but they do not have the same luxury. A huge number of people only have access to one provider (we have heard numbers north of 50%) which would unfairly skew competition in these regions should net neutrality protections not be maintained in some form. Perhaps the heavy handed regulation of the previous administration was not the way to go, but neither is the Pai hands-off, stand-back, take a nap approach.

Going back to the Ofcom investigation, the ripples could turn into waves before too long. European telcos have often complained the rules are not being applied consistently throughout the bloc and the Ofcom ruling could go some way to creating precedent. The roaming question is an interesting one, as while roaming charges are now a thing of the past, there are some telcos who do not offer 4G services when users leave the domestic market. O2 is one of them, but this could soon turn out to be a violation of the net neutrality principles.

This is an investigation which might be worth keeping an eye on. It doesn’t take much to spark a major incident in the telco and tech space, and roaming charges is an issue which has already proved to be adequate kindling in Europe.