Platforms and Communications Services

Communications platforms present a fundamental regulatory challenge for the definition of the legal nature of the service. Should the services provided by platforms be classified as telecommunications services and subject to the regulatory obligations traditionally imposed on telecommunications carriers?

Telecommunications services, like most traditional network industry services, are subject to regulation as they are considered services of general interest (in EU terms) or common carriers (in US terms). Telecommunications operators are required to register with the local regulator and file reports about their activities. Thus, multiple obligations are imposed upon them based on different grounds: consumer protection (quality of service, invoicing, and so on), security (lawful interception, data retention, emergency services, etc.) and promotion of competition (number portability, special access regulation, etc.).

Communications platforms are exempt from most of the telecommunications regulations. OTTs, by definition, do not transmit information. Skype and WhatsApp do not own infrastructures. Instead, they curate platforms that run over their P2P software, enabling users to directly interact with each other over the public internet. Traditional telecommunications carriers convey the information over their infrastructures and access to internet services. As a result, many of the services provided by platforms do not qualify as telecommunications services.

However, as these services are increasingly substitutes for traditional telecommunications services, there are ever more convincing arguments to define such services as telecommunications services. This is what the EU authorities did when they adopted the new European Electronic Communications Code7 in December 2018. There, the definition of telecommunications service has been expanded to include “number independent interpersonal communications services,” a long name for OTT services.

In any case, many regulatory obligations are merely the legacy of another time and are probably no longer necessary (for example, public phones, phonebooks, and identification of the location of the calling party). Therefore, it does not seem sensible to expand these obligations to platforms. Some regulatory obligations are in fact defensive practices by telecommunications operators to protect telephony from competition.

Finally, there is a basic institutional challenge. Online platforms are global players, with little to no presence in most countries and it is not simple to effectively impose national regulations upon them. Only large countries (US and China) or organizations such as the European Union have the reach to effectively control the activity developed by digital platforms.

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