Investigation into Lycamobile’s compliance with the mobile roaming regulations

Ofcom has today published a non-confidential version of the confirmation decision issued to Lycamobile on 8 March 2019:

Non-confidential decision concerning contraventions of the roaming regulations (PDF, 712.6 KB)

Annex 6 (PDF, 3.7 MB)

Ofcom has today issued a Confirmation Decision to Lycamobile under Regulation 4A of the Mobile Roaming (European Communities) Regulations 2007 for contraventions of Articles 6a, 6b and 6e of the Roaming Regulation and Article 4 of the Commission Implementing Regulation (EU) 2016/2286 (CIR). Specifically, Ofcom has found that Lycamobile contravened:

• Article 6a of the Roaming Regulation by levying a surcharge and/or general charge in addition to the domestic retail price for regulated roaming services to enable the service to be used abroad;
  • Between 15 June 2017 and 27 August 2017, customers that purchased a pre-paid bundle had to use or purchase separate pay as you go (PAYG) credit in order to be able to roam within the EEA, rather than being able to use their bundle allowance on a ‘roam like at home’ (RLAH) basis; and
  • From 28 August 2017 to January 2019, customers that purchased a non-roaming inclusive pre-paid bundle were able to roam within the EEA either using PAYG credit or by additionally purchasing a roaming inclusive pre-paid bundle.
• Article 6b of the Roaming Regulation and Article 4 of the CIR by applying data roaming limits that were lower than the minimum levels permitted by the regulations; and
• Articles 6b and 6e of the Roaming Regulation by applying surcharges for regulated data roaming services that were higher than the maximum surcharge permitted by the regulations. Specifically, Lycamobile’s charging policy for customers that roamed after reaching their data roaming limit and before reaching their domestic data allowance, exceeded the limits set in Article 6e(1)(a).

To the extent it has not already done so, Lyca is required to ensure that:

• its non-roaming inclusive pre-paid bundles are compliant with the regulations.
• any data roaming limits for roaming inclusive pre-paid bundles are set at or above the minimum level permitted.
• any surcharges do not exceed the maximum level permitted.
• It identifies and refunds customers who used additional pay as you go credit as a result of it not complying with the regulations.
• It sets up a process for customers seeking refunds for any additional roaming inclusive pre-paid bundles purchased to roam/continue to roam as a result of Lyca not complying with the regulations .
• It sets up a process for affected customers who cannot be identified by Lyca to come forward and claim a refund.

Within three months and one week from the issuing of our Confirmation Decision, Lyca must confirm to Ofcom that it has issued the refunds set out in the fourth bullet point above and provide figures for the total number of customers refunded and the total amount refunded.

A non-confidential version of the Confirmation Decision will be prepared and published shortly.

Following an investigation, Ofcom has provisionally determined that there are reasonable grounds for believing that from 15 June 2017 to present, Lycamobile has contravened, and is continuing to contravene the Roaming Regulations (Regulation (EU) 531/2012 (Roaming Regulation) and the related Commission Implementing Regulation (EU) 2016/2286 (CIR)).

Ofcom has therefore issued a Notification to Lycamobile under Regulation 3 of the Mobile Roaming (European Communities) Regulations 2007 (UK Regulations).

Specifically, Ofcom has reasonable grounds to believe that Lycamobile has contravened, and is continuing to contravene:

• Article 6a of the Roaming Regulation by levying a surcharge and/or general charge in addition to the domestic retail price for regulated roaming services to enable the service to be used abroad;
  • Between 15 June 2017 and 27 August 2017, customers that purchased a pre-paid bundle were only able to roam within the EEA using pay as you go (PAYG) credit, rather than being able to use their bundle allowance on a ‘roam like at home’ (RLAH) basis; and
  • From 28 August 2017 to present, customers that purchased a non-roaming inclusive pre-paid bundle were only able to roam within the EEA using PAYG credit or by additionally purchasing a roaming inclusive pre-paid bundle.
• Article 6b of the Roaming Regulation and Article 4(2) of the CIR by applying, as part of a fair use policy, data roaming limits that are lower than the minimum levels permitted by the regulations; and
• Articles 6b and 6e of the Roaming Regulation by applying surcharges for regulated data roaming services that are higher than the maximum surcharge permitted by the regulations. Specifically, Lycamobile’s charging policy for customers that roamed after reaching their data roaming limit and before reaching their domestic data allowance, exceeded the limits set in Article 6e(1)(a).

Lycamobile now has an opportunity to make representations to Ofcom on the matters contained in the Notification before Ofcom makes a final decision in accordance with Regulation 4A of the UK Regulations.

We aim to reach our final decision in this case in autumn 2018 and will publish our findings accordingly.

Following our consideration of information provided by Lycamobile, we have revised the scope of the investigation.

We have decided not to continue our investigation into whether Lycamobile requiring SIM cards to be first used in the home country is a breach of the Regulations. We are making no findings on this issue and reserving our position.

The investigation continues to examine whether there are reasonable grounds to believe that Lycamobile has failed to comply with the Regulations by:

• levying a surcharge in addition to the domestic retail price for regulated roaming services and/or a general charge to enable the service to be used abroad;
• levying surcharges for regulated roaming services used that are higher than the maximum surcharge allowed; and/or
• applying as part of a fair use policy data roaming limits that are lower than the minimum levels required.

Following consideration of information provided by Lycamobile in response to Ofcom’s initial enquiries, Ofcom has decided to open an investigation into Lycamobile’s compliance with the Roaming Regulation and CIR (the “Regulations”).

Article 6a of the Roaming Regulation places an obligation on roaming providers not to apply a surcharge in addition to domestic retail prices for the use of regulated roaming services or a general charge for enabling roaming, subject to a fair use policy or authorisation from the national regulatory authority. Article 6b of the Roaming Regulation and Article 4 of the CIR set out a roaming provider’s ability to apply a fair use policy for using roaming services, including fair use data limits. Article 6e of the Roaming Regulation caps the maximum surcharge a roaming provider can apply for using regulated roaming services in excess of any limits under a fair use policy.

The investigation will examine whether there are reasonable grounds to believe that Lycamobile has failed to comply with the Regulations by:

• levying a surcharge in addition to the domestic retail price for regulated roaming services and/or a general charge to enable the service to be used abroad;
• levying surcharges for regulated roaming services used that are higher than the maximum surcharge allowed;
• in requiring SIM cards to be first used in the home country, applying as part of a fair use policy a control mechanism to prevent anomalous use of regulated roaming services based on an objective indicator not provided for by the Regulations; and/or
• applying as part of a fair use policy data roaming limits that are lower than the minimum levels required.

We aim to reach a provisional decision in this investigation by the end of April 2018.