committed to Europe Digital Communication Services need new rules March 2014

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1 Digital Communication Services need new rules March 2014 Marc Lebourges Disclaimer: Views of the speaker, not necessarily views of Orange committed to Europe

2 Policies and Regulations : What is it about? Intermediary liability regime Cross-sector privacy rules Consumer protection rules Interoperability Security and integrity Emergency calls E-privacy rules Legal interception Portability USO contributions Neutrality Common rules ECS-specific rules 2

3 Distinct regulation inappropriate when services merge Unregulated ISS compete directly with regulated ECS: Legacy services : Voice, Messaging, TV New services : Cloud, CDN Also extends to access to Internet services (e.g. OS- Browsers-Proxy or App stores have more control on access to Internet services than IAS providers) Unclear regulatory classifications: 3 Skype Arcep dispute; Hogan Lovell & Analysys report for ARCEP failed to establish a clear classification for VoIP, IM, Cloud, CDN; In case of doubt, the core business risks determining the regulatory nature/treatment of a given service (telco s ISS will not be treated as ISS)

4 Consequences Consumer protection is not guaranteed: privacy rules ( DPD vs. DPD + e-privacy applied to voice and mail) notification of security breaches State security and crime prosecution provisions are not efficiently enforced: legal interception does not apply to OTT VoIP services. NRAs have uncertain powers: Skype Arcep; PC to PC / Face time out of regulatory reach; 4 ECP suffer the competitive distortion: ECP bear the costs of regulatory uncertainty/compliance; OTT are free to innovate without permission, ECP can t, being under the reach and constant scrutiny of domestic and European authorities

5 Much suggests that the bias roots in the obsolete definition of Electronic Communication Services According to the European regulatory framework, Electronic Communication Services are characterised by the conveyance of signals on Electronic Communication Networks: Conveying signals is considered a key criterion to qualify a an ECP/ECS Generalisation of broadband access renders the criterion obsolete: Communication services may indeed be provided on service platforms independently of the access provider conveying signals. 5

6 Providing traditional communication services implies conveying the signal because users interact with network at service layer Communication Service User User Transport Service interface 6

7 Now, users also interact with network at transport layer via BB access Providing communication services Over The Top does not imply conveying the signal Communication Service User User Transport Service interface 7

8 Conveyance is no more a clear and operating criterion to classify communication services 8

9 ECS definition must be changed Why? in order to achieve «same service, same rules» for consumer protection, legal security, fair competition How? Two options (a) (b) Extend ECS regulation by extending ECS definition to substitutes - Fast track for to address short term urgencies but - Not a long run solution: Circular, not future proof, jurisdiction dependent, institutional issues, not deregulatory Limit ECS definition to Internet Access Service (IAS) - all other ECS become Information Society Services (ISS), ECN definition unchanged - keep IAS relevant USD provisions - repeal e-privacy Directive - transfer relevant ECS rules to common laws (NIS, GDPR) - include in Consumer Rights Directives:. connecting people provisions for interpersonal services (interoperability, legal inceptions, portability, emergency communications, ). proportional Internet neutrality provisions for Internet platforms (openness, transparency, non discrimination, fair value allocation, ) 9

10 and more Achieving the Level Playing Field also needs levelling tax, privacy regulation, applying the same principle: reduce sector specific law reinforce common law Similar logic could apply to economic bottlenecks, prohibition of unbalanced contractual B-to-B clause could be introduced in EU law to be applies cross-sector and could in the long run also replace ECN bottleneck regulation 10

11 thanks Orange, the Orange mark and any other Orange product or service names referred to in this material are trade marks of Orange Brand Services Limited. Orange restricted.

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