Arcep and neutrality: Paved with good intentions….

The French Ministry of Industry – responsible for the digital economy – wants to make Arcep (the independent authority that regulates electronic communications and postal services in France) an overarching guardian for French networks. This would make the regulator more independent, deterrent, and able “to ensure network neutrality” – these are the objectives outlined by the French President, and were issued as a new mandate last Friday in the Official Journal.

The written French law is part of a set of European directives, called the “Telecom Package.” Its publication comes days after the tumult over a document from the French Federation of Telecoms (FFT), which exposed plans to put an end to unlimited household Internet packages (as revealed on OWNI).

If the industry tries to deny any cause and effect between this new development and the release of the order, its attempts would be in vain. Eric Besson, Minister in charge of the case and unsettled by the project from the FFT, asserted the need to “regulate the use of the term ‘unlimited’ by operators, and protect consumers against abuses,” without giving more details about the modus operandi envisioned. By providing Arcep the means to better regulate operators and to prevent breaches of neutrality, this text could prevent indiscretions in the future – at least on paper. If we look closer, the new powers of the authority are at best undefined, and at worst inconsistent.

Service providers: The Internet, without Internet – but explained to everyone!

Reading the mandate, it’s evident Arcep is responsible for ensuring users’ access to a neutral Internet (Article 3) and imposing “minimum quality of service” so as “to prevent degradation of service and the hindrance or slowing of network traffic” (Article 16). It can also gather more information from net users (Article 4) and has the power to impose sanctions on operators (Article 18). These extended powers has clearly satisfied the regulator, who issued a “favorable opinion” of the project [PDF]. Yet this level of analysis does not stand up to scrutiny.

Article 3 changes Article L.32-1 of the Post and Electronic Communications Code, allowing Arcep to “facilitate the ability of end users to access information and disseminate as well as access applications and services of their choice.” Is this the beginning of the end of “unlimited” Internet packages proposed by the mobile operators, that  specifically exclude access to certain network services (such as VoIP, P2P and newsgroup)? “Good question,” replies the authority with a sly grin, not risking further interpretation.

Furthermore, the service providers are accruing an increasing number of obligations – including the installation of an “honest and impartial mediator” (36) – which is creating a form of hyper customer service. They are only required to provide details about their offers (art. 33), in particular their “quality,” “services,” “price details,” traffic management measures, and “restrictions of access to services and use.”

This is a step forward for contracts that are seemingly illegible, yet the new legislation doesn’t follow the strict protection of the neutrality required by certain consumer groups and content publishers. These groups advocate for the outright abandonment of restrictions on usage – especially on cell phones – so that packages marketed as an “Internet offer” actually allows unlimited access to networks. In short, service providers are keeping the name “Internet” on their packages, but the service is not truly acting like the Internet. Note that FFT members agreed to:

Retain the term “mobile Internet” or “3G Internet” and display more clearly the exclusions in practice. It’s more understandable for a consumer to specify exclusions, rather than to adopt another term which would be potentially less clear. The term “Internet” remains the most telling label  for the consumer and the most representative of the offer provided ” (p.1)

Arcep’s hardest job? Making networks more transparent

From a technical standpoint, Arcep wants to be given the right to stick its nose into the entire network. They can ask “persons providing public communication online services” to give them “information or documentation concerning technical conditions and traffic routing rules applied to their services” (art.4).

Arcep now has the authority to resolve disputes over “mutual technical and pricing requirements for traffic routing between an operator and a company providing communication services to the online public” (Article 17-5) .

Will Arcep’s power extend to new players on the net? This remains to be seen. One thing is certain, content providers – Google, Facebook and others – are now subject to Arcep. What about everyone else? Between sites and operators, there is a whole ecosystem that teems with actors (CDN, transit operators, hosting…) who are monetizing Internet traffic precisely. These intermediaries are little known to the general public. Yet these actors are fully involved the economy, and influence the way data is received by the users – it’s highly strategic financial investment. For example, if Arcep wants to know who pays what and to whom for a YouTube video, the information wouldn’t be very reliable without the ability to pressure intermediaries. It’s difficulty under these conditions to know whether network neutrality is being respected or not, and therefore difficult to accurately and efficiently perform the tasks which it is held legally responsible.

Yet in this case the law does not help much. According to Benoit Tabaka, legal and regulatory head of PriceMinister, the term “provider of online communication to the public” is a legal monster. It is a hybrid concept of “communication services to the online public” (the principle defined in the LCEN) and the “providers of electronic communications services” (the Postal and Electronic Communications, L-32). In short: the term still needs to be defined.

There is an additional blurring to an already vague definition of the Internet, including the conditions of access and interconnections between users that are called “obscure” by Arcep. The authority is working to clarify this market, a task already considered “very difficult.” The definition games are certainly not helping.

To protect the neutrality, Arcep will have to redouble its efforts, both in the interpretation of its new powers and its implementation. After the FFT case, the authority justified its silence to OWNI simply by explaining that “operators make the offers they want.”

In the first trimester of 2012, Arcep will write a report to the government and Parliament on the quality of service of Internet access, market conditions for interconnection, as well as traffic management practices of service providers – thus putting itself on the offensive. Orange, Bouygues, Free, SFR, Google, Facebook and Co., won’t be too willing to open their vaults, infrastructure, accounts, or secrets.

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Illustrations CC FlickR: Steven de polo, Horia Varlan