Out-Law News 3 min. read

Detail of new EU roaming 'fair use' policy to be fleshed out by European Commission

The European Commission will draw up rules to help mobile network operators set limits on the amount of 'roaming' they will allow their customers to engage in before they can apply charges to the activity, the EU's Council of Ministers has said.

The Council has formally approved new EU rules that will generally bring an end to roaming charges – the fees applied to the use of mobile data services by consumers when abroad – from 15 June 2017.

However, under the reforms, mobile network operators will be able to charge consumers that exceed a "fair use" cap on the use of mobile data services abroad.

In a document that sets out its reasons for adopting the new rules (7-page / 235KB PDF), the Council said that the Commission will be responsible for outlining specific rules on the 'fair use' cap. The European Parliament must also vote through the regulations that the Council has formally approved for those rules to come into force. An informal consensus on the plans was reached by the Council and Parliament earlier this year and the Parliament is now expected to give its formal backing to the new regulations later this month, the Council said.

"Roaming providers will be able to apply a 'fair use policy' to prevent abusive or anomalous usage of regulated retail roaming services," the Council said. "Once the fair use policy has been exceeded, a surcharge may be applied. The surcharge cannot be higher than the maximum wholesale charges. The detailed rules on the application of the fair use policy will be defined by the Commission in an implementing act by 15 December 2016."

The proposals approved by the Council (57-page / 456KB PDF) include a further exception to the general ban that will apply to roaming charges.

"With a view to ensuring the sustainability of the domestic charging model, in specific and exceptional circumstances, where roaming providers will not be able to recover overall costs of providing regulated roaming services from overall revenues of providing such services, they, subject to the authorisation by the national regulatory authority, may apply a surcharge, but only to the extent necessary to recover those costs," the Council said in its reasons document.

The Council explained that the 15 June 2017 deadline for ending roaming charges, subject to the fair use and costs exceptions, is dependent on changes being made to rules that set "the maximum wholesale charges currently regulated" or another solution being found "to address issues identified at wholesale level". The Commission is required to "conduct a review of the wholesale roaming market with a view to assessing measures necessary to enable abolition of retail roaming surcharges", the Council said.

Rules to cap roaming charges at levels currently lower than can be applied will come into force 30 April 2016 under the new regime, it said.

"In order to ensure a smooth transition to the abolition of roaming surcharges, the compromise provides for a transitional period, which will start as of 30 April 2016," the Council said. "From this date roaming surcharges will be significantly reduced. The maximum surcharge will then be limited to the current maximum wholesale charges laid down in [the EU's Regulation on roaming on public mobile communications networks within the Union (26-page / 927KB PDF)]. For calls received, the maximum surcharge will be the weighted average of maximum mobile termination rates across the EU, to be set out by the Commission by means of an implementing act by the end of 2015."

The new regulations voted through by the Council will, once adopted by the Parliament too, set new 'net neutrality' rules in the EU. The net neutrality regime will take effect from 30 April 2016.

Net neutrality is the principle that ISPs will deliver all content requested by customers equally, and where the speed and quality of content delivered to customers is not dictated by the price content producers are willing to pay ISPs for preferential treatment of their content as it passes over the ISPs' network.

The new net neutrality rules lay out strict conditions on when ISPs could block or throttle the delivery of content requested by users of their network. It would prevent "paid prioritisation" of content delivery online, although ISPs will be able to agree deals to deliver services of enhanced speed and quality with content providers in some cases, provided that it has no impact on "the open internet".

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