Comments on the BERECs Draft Work Programme 2013

Comments on the BERECs Draft Work Programme 2013

by VON Europe, October 2012 Preliminary Remarks
The Voice on the Net Coalition Europe (VON) welcomes the opportunity to comment on the BERECs draft Work Programme 2013 (hereafter the WP). VON notes that, looking at the identified deliverables, only 4 out of 17 will undergo a public consultation, whilst many identified work streams simply do not have any expected deliverables. Although we can understand that not everything should be consulted on, we certainly regret that important topics such as net neutrality (section 5.1, deliverables (a), (b), (c) and (e)) and the Relevant Markets Recommendation (section 6.7, deliverable (b)) would not undergo a formal consultation under the current proposal. VON also continues to regret that no work stream is looking at numbering. This is especially disappointing when considering the fact that the European Conference of Postal and Telecommunications Administrations (CEPT) Electronic Communications Committee (ECC) Working Group on Numbering and Networks (WG NaN) has published a draft Recommendation on numbering for Voice over IP (VoIP) services, which at this stage recommends that:1 1. NRAs should ensure that VoIP services can be provided using the existing numbering ranges of the national numbering plans; 2. without prejudice to any existing specific nomadic VoIP numbering ranges, NRAs should assign either fixed or mobile numbers depending on the specific features of the service in question in accordance with the existing national numbering plan. The BEREC should support these Recommendations and more generally reform the numbering systems at national level, as we set out below in our detailed responses.

See CEPT ECC. (2012). ECC Recommendation (12)04 Numbering for VoIP Services. Retrieved at, http://www.cept.org/files/1051/Tools%20and%20Services/Public%20Consultations/2012/ECCRec%2812%2904%20%20Numbering%20for%20VoIP%20Services%20-%20PC%20version.docx.

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Detailed Responses
1 NGN and IP Interconnection (Section 4.4 (a)) VON considers that the BEREC has put a lot of resources (both in terms of time and effort) in analysing the IP-interconnect mechanisms and that, with the findings of its Report2 that no market failure is present, these resources should now be re-allocated to put an end to the many discriminatory behaviours identified in the BEREC and the European Commissions joint investigation on traffic management.3 VON therefore encourages the BEREC to focus its attention on the identified issues in the context on net neutrality, namely discriminatory practices that have commercial motivations (the BEREC having demonstrated in this Report4 the fact that the claims of congestion, excessive costs and alleged free-riding by CAPs as put forward by some access network operators, rest on absolutely no evidence, quite the contrary). VON would also like to draw to the BERECs attention some of the collateral damage that can derive from blocking and filtering practices by one operator to networks in neighbouring countries. Indeed, on July 13, 2012, Ars Technica reported that researchers at the Citizen Lab at the Munk School of Global Affairs at the University of Toronto, revealed that some Oman Internet users using the Omantel ISP are also being subjected to Indian content restrictions because of traffic flowing through India.5 This adds a whole new dimension to the possible impacts of unreasonable traffic management on society as a whole and CAUs/CAPs specifically. Finally, VON believes that there is a risk stemming from the potential (and in some cases already ongoing) vertical integration of a few operators that could lead to a bottleneck at termination level, with the resulting risk of excessive IP termination rates being levied by these operators acting as the new or renewed monopolies. VON considers this phenomenon merits BERECs full attention.

See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/bor_%2812%29_33_ip_ic_assessment_nn_draft_report_for_publi cation_clean.pdf. 3 See BEREC. (2012). A View of Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe. Findings from BERECs and the European Commissions Joint Investigation (BoR (12) 30). Retrieved at, http://berec.europa.eu/files/document_register/2012/7/BoR12_30_tm-snapshot.pdf. 4 See BEREC. (2012). Draft Report on An assessment of IP-interconnection in the Context of Net Neutrality (BoR (12) 33). Ibid. 5 See Farivar, C. (2012, July 13). Internet Content Blocking Travels Downstream, Affects Unwary Users. Ars Technica. Retrieved at, http://arstechnica.com/tech-policy/2012/07/internet-content-blocking-travels-downstream-affects-unwaryusers/.

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2 Facilitating access to radio spectrum (Section 4.5) In light of the BERECs intentions to continue its co-operation with the RSPG and to focus on the effective utilisation if the radio spectrum, VON would like to emphasize that: Radio spectrum is increasingly recognised as an important link in providing Internet access, especially to otherwise underserved areas, which represents new opportunities for innovation to the benefit of citizens, administrations, and the economy as a whole. Spectrum supports a multiplicity of technical solutions, making it an invaluable tool to enable a wide range of advanced and innovative electronic communications and information society services. Hence, full and preferably harmonised utilisation in the Member States and across Europe of radio spectrum will be critical to deliver on Europes growth and policy objectives in the Digital Agenda. The significance of adopting a consistent EU-wide approach to spectrum use cannot be overstated. However, it is also essential to be clear about the fact that, while VON welcomes harmonisation, we would also like to stress the importance of the principles of technological, network and service neutrality within a common regulatory framework, and the importance to permit new spectrum uses wherever there is no objective interference-related impediment (to be assessed on a scale which is less than nation-wide). VON considers the that BEREC should examine the increasing opportunities for unlicensed devices and innovative spectrum access models, making a maximum of spectrum available for broadband Internet access and improving the transparency of spectrum allocation and utilisation. Besides the often stated Digital Dividend, there are huge parts of the spectrum that remain rarely used (defence for example does only need certain bands at specific times in specific locations). Governments have significant tools at their disposal in order to increase the effective and efficient use of spectrum, and the BEREC could help by identifying these tools.

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3 Net neutrality (Section 5.1) VON would first and foremost like to commend the BEREC for the outstanding work done in 2012 in addressing the various work streams related to net neutrality. (a) Opinion on the European Commission Recommendation on Net Neutrality VON welcomes the fact that the BEREC will be assisting the European Commission by providing an Opinion on its scheduled Recommendation. VON urges the BEREC to specifically stress the fact that competition, transparency and switching alone are insufficient to preserve the open Internet and that further guidance is required. We refer you for more details to our responses to the various consultations of the BEREC on net neutrality. (b) Monitoring Quality of Service Practices and Platforms Whilst VON understands that the Report on measuring Quality of Service (QoS) of broadband access services may not be a document that is fitting for consultation, we do consider that, discussions on methodology and more specifically on what and how to measure should be conducted with a multi-stakeholder input. The BEREC must indeed take into account the fact that the online ecosystem is complex and multi-dimensional. QoS measurements, as well as enforcement of open Internet policies and regulations will require leveraging the deep technical expertise within the regulators and creating a process for gathering input and data from outside experts. The BEREC should convene a technical advisory group with industry participants (content, application and service providers and ISPs) operating across the EU, and other relevant stakeholders (e.g. consumer groups) as a means of receiving expert input to help inform reasoned decision-making about what forms of discrimination may be anticompetitive or harm end users and consumers, create barriers to innovation (including by providers of content, applications and services and consumers), and what best practices should be put forward. Industry experts can provide the BEREC with valuable information on network management practices and developments in network infrastructure and technology, and what constitutes minimum QoS as provided for in EU legislation. VON believes that if measurement tools are put in place, these need to be open and transparent. Transparency requires:

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Well-documented and open-source measurement tools, to help make the data collected more useful and credible; Openly available data and analytic methodologies, to support independent analysis and peer-review; Openly documented measurement framework. This is true especially when a measurement program is put in place to produce QoS measurements that will be published and used to ensure accountability and network health; and, Consistent, consistently-managed, well-documented measurement platform, to help ensure that the data collected are truly robust. (c) Study on consumers incentives and market forces driving Net Neutrality developments VON welcomes this study and is willing to support it in any possible manner. We would not however want this work stream to be used as yet another excuse by the European Commission to further delay adopting its Recommendation, and for the latter to comprise meaningful guidance on the open Internet. We do consider that such a study should undergo a formal consultation procedure. (d) Transparency guidelines follow-up: Further specifications VON considers that the BERECs work so far on transparency has shown constant progress in the thoroughness of its analysis. VON is however very cautious about a reference offer approach for Internet access, as this could lead to unwanted effects: For VON, Internet access should by essence be unrestricted. If the purpose of a reference offer is to define what an unrestricted offer is, that seems a bit odd. If the purpose on the other hand is to imply that aside from a full Internet access package there can be a light Internet access package, in which certain services or applications would be hindered, blocked or require the payment of a surcharge, then VON opposes this concept. VON believes that there is much more value in adopting an application agnostic approach that lets the user decide, and not the ISP acting as a gatekeeper. van Schewick, for example, develops the concept of user-controlled Quality of Service, whereby

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network providers make different types of service available equally to all applications and classes of applications and where users choose whether and when to use which type of service.6 She considers this approach to be the only one that responds to what she has identified as the three guiding principles required to safeguard net neutrality and the open Internet, namely: (1) application-blindness, (2) user choice and (3) innovation without permission.7 VON agrees with such a user-centric non-discriminatory approach and considers that the BEREC should set in place the needed principles and safeguards to deliver such a result, which seems to equate to the BERECs definition in its draft Guidelines on quality of service (QoS) of prioritised IAS8 and its statement that it may be relevant to prohibit application-specific restrictions on a general basis.9 Such principles could be seen as a form of minimum qualitative QoS, more detailed quantitative QoS being set separately. A reference offer should not jeopardize these principles. (e) Preparation of second round of the Traffic Management Investigation (TMI) VON considers the first round of the TMI was a very useful exercise and can only applaud the fact that a second round is taking place. We do believe however that this exercise should be open for consultation as regards the used methodology on the one hand but also the availability of the questionnaire on the second. VON also considers that the entirety of the answers should not be covered by a blanket confidentiality provision, as was the case in the first round. The data given should be shared

See van Schewick, B. (2012). Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like. p. xiii. Retrieved at, http://cyberlaw.stanford.edu/downloads/20120611-NetworkNeutrality.pdf. 7 More in detail, van Schewick (2012: xiii) points out that: First, they preserve the application-blindness of the network: The provision of Quality of Service is not dependent on which applications users are using, but on the Quality-of-Service-related choices that users make; thus, the network providers does not need to know anything about which applications are using its network in order for this scheme to work. The network provider only makes different classes of service available, but does not have any role in deciding which application gets which Quality of Service; this choice is for users to make. As a result, network providers cannot use the provision of Quality of Service as a mechanism to distort competition among applications or classes of applications. Second, since users choose when and for which applications to use which type of service (in line with the principle of user choice), they can get exactly the Quality of Service that meets their preferences, even if these preferences differ across users or (for a single user) over time. Third, in line with the principle of innovation without permission, an innovator does not need support from the network provider in order for his application to get the Quality of Service it needs. The only actors who need to be convinced that the application needs Quality of Service are the innovator, who needs to communicate this to the user, and the user, who wants to use the application. This greatly increases the chance that an application can get the type of service it needs. 8 See BEREC. (2012). Draft BEREC Guidelines for Quality of Service in the Scope of Net Neutrality (BoR(12) 32). p. 40. Retrieved at, http://berec.europa.eu/files/news/bor_12_32_guidelines.pdf. 9 See BEREC. (2012). Ibid. p. 59.

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where appropriate with external research centres (such as Measurement Lab (M-Lab)10), consumer associations and even the general public, to allow the data to be scrutinised much more in-depth. 4 Supporting end users with disabilities (Section 5.3) VON supports the holding of workshops to identify appropriate actions to support end-users with disabilities and ensure equivalence of access and choice. However, any such measures must be technology-neutral and non-voluntary measures must only apply to Publicly Available Telephone Services (PATS) services. In particular, any mandates regarding emergency services access for disabled users must not require the use of particular technologies. Any such mandates also should be harmonized with international standards organizations focusing on these issues in the EU and elsewhere and support industrys current developed process for self-declaration of accessibility features included in such products and services. Providers must have the flexibility to offer innovative solutions even if they do not have the look and feel of conventional access tools. 5 An item to add to the list: Numbering VON believes that it is in the interest of European citizens and the European economy as a whole to focus its attention on putting in place the building blocks of a forward looking framework, focusing on delivering choice and innovation to consumers, rather than sticking to obsolete principles, with the ensuing compliance issues. The Electronic Communications Framework requires a wider availability of numbers but no adequate enforcement has been put in place so far. The BEREC should make the numbering issue a priority in its efforts to improve regulatory consistency and harmonisation within the EU, and in order to work on the Recommendations identified by the European Conference of Postal and Telecommunications Administrations (CEPT) Electronic Communications Committee (ECC) Working Group on Numbering and Networks (WG NaN).11

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See Measurement Lab (M-Lab), http://www.measurementlab.net/. See CEPT ECC. (2012). ECC Recommendation (12)04 Numbering for VoIP Services. Retrieved at, http://www.cept.org/files/1051/Tools%20and%20Services/Public%20Consultations/2012/ECCRec%2812%2904%20%20Numbering%20for%20VoIP%20Services%20-%20PC%20version.docx.

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The BEREC should ensure and enforce the harmonisation of the variable eligibility and usage conditions for allocation of numbering resources and should undertake a profound review of the national numbering plans to truly make it technology neutral. (a) Various eligibility and usage conditions In terms of numbering, the current Regulatory Framework sets a de minimis rule whereby numbers should be allocated at least to ECS, without precluding the allocation of numbers to nonECS. This is set out under Article 10 of the Framework Directive (2002/21/EC) which only states that: 1. () Member States shall ensure that adequate numbers and numbering ranges are provided for all publicly available electronic communications services. Under the reviewed Regulatory Framework, Article 10.4 of the revised Better Regulation Directive stipulates that: Member States shall support the harmonisation of specific numbers or numbering ranges within the Community where it promotes both the functioning of the internal market and the development of pan-European services. The Commission may take appropriate technical implementing measures on this matter. Unfortunately, the current practice shows that eligibility status and conditions vary considerably across the member states with some NRAs requiring service providers to notify as PATS in order to be eligible to apply for numbering resources. Finally, the flexibility given to NRAs appears even more clearly when analyzing the guidance provided by the European Commission in the Information and Consultation Document of 14 June 2004 on the treatment of VoIP under the EU Regulatory Framework,12 which states in Section 7.1 that: Any undertaking providing or using electronic communication networks or services has the right to use numbers. [] The BEREC should therefore take on board this clear encouragement by the European Commission to adopt a more flexible and open approach to numbering, in the interest of developing offerings with global reach, and provide appropriate guidance to its members to ensure more harmonization in this field and increased consumer benefit.

12

See European Commission. (2004). Commission Staff Working Staff Working Document on the treatment of Voice over Internet Protocol (VoIP) under the EU Regulatory Framework. An Information and Consultation Document. Retrieved at, http://ec.europa.eu/information_society/policy/ecomm/doc/library/working_docs/406_14_voip_consult_paper_v2_1.pdf.

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(b) Harmonisation of usage conditions Todays pan-European service providers face the difficulty to assess and comply with 27 different regulations in order to be allocated and use numbering resources. Past studies by the ERG also show that the type of numbering range open to IP enabled service providers varies substantially (from the regular national or geographical numbering ranges to specific nomadic, toll free and calling card numbering ranges). In addition, the allocation of the same type of numbering range (e.g. a regular geographical numbering range) may be associated with multiple variable usage conditions (varying from no usage conditions to supplementary restrictions to install specific equipment in the territory, require to obtain a local address of the user, or to terminate calls in the geographical zone). The profound analysis of the eligibility and usage conditions for the allocation of numbering ranges is not only a highly time consuming effort (resulting in a late time to market), it also requires substantial financial resources. VON calls upon the BEREC to strongly encourage NRAs to ensure that numbering ranges can be used in the same forward-looking way throughout the European Union. (c) Discarding location information in numbering ranges when it comes to termination In addition to that, VON believes that the usage of numbering resources should be rethought on a EU level. Nomadism has become an integral part of todays way of life. In consequence of that, there is an increasing demand for nomadic applications within a harmonised single digital market in the EU. VON therefore considers that the way forward is discarding location information from any kind of telephony number in Europe, as regards the termination of calls. Location information of geographic numbers is a legacy from the Plain Old Telephony Services (POTS), where habits were not what they are today. In recent years, people have become more flexible, ready to move and travel at any time. Mobile phones have long overtaken fixed phones in Europe and calling your plumber happens more often than not on his mobile phone. These important changes in the general way of life, and the evolution of technology, have an impact on the features customers are demanding. Both business and residential customers request innovative possibilities including nomadicity. Today, the relevance of geographic numbers

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is fading, services are no longer linked to the location information, rather to personal information and service and application features. This is confirmed in practice by the increasing switch to mobile phones. Mobile Internet devices will only enhance that trend. It also seems in contradiction with the fact that many consumers increasingly want to be connected all the time and everywhere, which usually implies increased mobility. Moreover, in reality geographic numbers are increasingly not representative of the location of a called party: for example, with call forwarding, a call to a number supposedly located in a specific geographic region, could very well be forwarded to an entirely different place. This link to geographic locations disappears even more when thinking of an next generation network (NGN) environment, characterised by the switch to an all-IP world. The preserving of location information when terminating to geographic numbers would keep an additional barrier for new entrants, especially those providing innovative applications and services and including use of geographic numbers, because users demand geographic numbers. In terms of numbering, it has long been considered that the primary distinguishing feature of geographic numbering is that is has geographic significance. This was linked to the fact that a geographic number was in the past associated to a tariff range, an expected call quality and a specific location of the recipient of the call. In an all-IP world, many of these features are totally irrelevant. Currently, many providers of VoIPenabled offerings provide the possibility to call for free or at very low flat fee tariffs that are the same regardless of location. In parallel, people divert their fixed phones, or even abandon them to exclusively use mobile phones. It is therefore becoming increasingly obvious that consumers are no longer truly concerned with location information, but rather with the cost of calling. Consequently, the reason why geographic numbers are used by residential and business customers is because of the retail price transparency. VON therefore strongly believes that geographic numbers are most suitable to open up VoIP opportunities to the mass market, given that consumers are highly familiar with those types of numbers and end user tariffs are transparent (or at least not less transparent than other types of numbers).

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Moreover, from a technical point of view, non-geographic numbers such as specific nomadic numbers are not always reachable from all networks, and are in many cases not reachable or only reachable against higher tariffs for the calling party from another country. Therefore, VON encourages the BEREC to tackle these challenges in a specific workstream, to be added to this Work Programme. *** We thank you in advance for taking consideration of these views. Feel free to contact Herman Rucic, VON Europe, by phone (+32 (0)478 966701) or email (hrucic@voneurope.eu) should you need further information. * * * About the VON Coalition Europe The Voice on the Net (VON) Coalition Europe was launched in December 2007 by leading Internet communications and technology companies, on the cutting edge to create an authoritative voice for the Internet-enabled communications industry. Its current members are iBasis, Google, Microsoft, Skype, Viber, Vonage, Voxbone and WeePee. The VON Coalition Europe notably focuses on educating and informing policymakers in the European Union and abroad in order to promote responsible government policies that enable innovation and the many benefits that Internet voice innovations can deliver.

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