Court orders Sutel to alter ‘fair use’ policy

7 Sep 2017

Costa Rica’s Constitutional Court has ordered sector watchdog the Superintendency of Telecommunications (Superintendencia de Telecomunicaciones, Sutel) to impose a temporary minimum data transfer rate for post-paid mobile internet users that exceed their ‘fair usage’ allowance. La Nacion writes that the regulator has been given 30 days to impose a temporary speed floor, whilst a permanent base line must be determined within four months, the court granting the watchdog the extra time to carry out any necessary technical studies. Under the ruling, Sutel’s amended fair usage policy must allow customers to maintain ‘functional access’ to the network after exceeding their fair use cap.

The court found that Sutel’s decision to allow cellcos to determine speeds under fair use policies – which allow operators to limit a customer’s download speed once a set data cap has been exceeded – violated consumers’ fundamental rights.

Fair use caps were introduced in Costa Rica in 2014 as a means to allow providers to mitigate the potential congestion caused by a small proportion of extremely high-use customers, and the resultant negative effect on service quality. However, in its ruling the court questioned the blanket implementation of fair use caps at all times, suggesting that the cap was not necessary during off-peak periods. Further, the court noted that Sutel’s consideration of ‘functional’ access was outdated, as it was based on 15-year-old ITU data which defined a download speed of 128kbps as suitable for audio and video applications. Judge Paul Rueda added: ‘What in the past could be a reasonable speed, today is not necessarily the same because the resources and the demand for services grow, so the minimum access speed requirements must be updated.’