European telecom regulator Body of European Regulators for Electronic Communications (BEREC) recently updated its net neutrality rules to include a strict ban on zero-rating practices that exempt specific apps from data caps implemented by Internet service providers.

The document, released last Tuesday, gives guidance to national regulatory authorities on their “obligations to closely monitor and ensure compliance with the rules to safeguard equal and non-discriminatory treatment of traffic in the provision of Internet access services and related end-users’ rights.”

“Despite intense lobbying from big carriers and giant platforms, BEREC voted to clearly ban zero-rating offers that benefit select apps or categories of apps by exempting them from people’s monthly data caps. The ban applies whether the app pays to be included or not, closing a loophole in the draft guidelines,” said Stanford Law Professor Barbara van Schewick. 

While Europe has continually expanded its net neutrality regime, the US has not had any federal net neutrality guidelines since these were abrogated under former Federal Communications Commission Chairman Ajit Pai.

The new BEREC guidelines came as a response to a September 2021 Court of Justice ruling that “zero tariff” options that distinguish between types of Internet traffic “on the basis of commercial considerations” are in violation of Europe’s Open Internet rules requiring “equal treatment of traffic, without discrimination or interference.”

In BEREC’s new guidelines, it “considers any differentiated pricing practices which are not application-agnostic to be inadmissible for IAS [Internet access service] offers, such as applying a zero price to ISPs’ own applications or CAPs [content, applications, and services] subsidizing their own data.” Additionally, a “price-differentiated offer where all applications are blocked (or slowed down) once the data cap is reached except for the application(s) for which zero price or a different price than all other traffic is applied would infringe” European rules, BEREC said. The guidelines encompass both mobile and fixed Internet service.

Furthermore, van Schewick predicts that while “many European carriers offer plans that don’t count the data you use on Facebook or WhatsApp against your data cap, carriers across the EU will soon end their discriminatory zero-rating plans and offer customers of those plans significantly more data for the same price.”