The Higher Administrative Court for North Rhine-Westphalia (OVG NRW) decided in favor of a telecommunications company that challenged a Federal Network Agency order concerning the throttling of users deemed “heavy data users.”
The Bundesnetzagentur had issued an order prohibiting the company from using contractual clauses for mobile internet services with unlimited or very large data volumes that allow for the deprioritization of traffic. This deprioritization means that during exceptional network overload, the data traffic of these specific customers is transmitted with lower priority after a certain volume threshold is reached, which can result in constraints such as reduced video streaming quality.
The 13th Senate of the OVG NRW subsequently ruled that the agency’s order cannot be implemented provisionally. The court justified this decision by stating that the case law of the European Court of Justice has not yet fully clarified whether such deprioritization clauses constitute unjustified unequal treatment. Ultimately, the court decided that the interests of the company took precedence, as immediate enforcement of the clause could result in irreparable losses. The ruling was declared final.
