Paris, 7 June 2017 — The future of the decentralised nature of the Internet is at stake with the negotiations on the European Electronic Communications Code. La Quadrature du Net publishes its first voting lists on amendments that have been tabled in committees and refers to the factsheets (pdf) drafted by netCommons. As anticipated, the lobbying of the telcos has been very useful with many amendments – especially from the right wing – that aim to protect oligopolistic positions of major telcos, undermining any attempt of openess for new actors and rights of users.



As part of the overhaul of the Telecom Package, the European Commission has decided to create a European Code of Electronic Telecommunications. This very complex and massive bill sets the rules for co-investment, radio frequencies, access of small actors to the networks of incumbents, encryption, connectivity country planning, etc. We already wrote about this text in our piece about the main rapporteur’s, Mrs Pilar Del Castillo, report.

The list of amendments to be voted on 22 June in the IMCO committee and on 11 July on ITRE committee are tabled and negotiations on so-called “compromise amendments” are ongoing. The compromise amendments reflect a very opaque and undemocratic process where, through backroom deals, Members of the EU Parliament try to shorten and simplify the vote by “mixing” their different stances on the text according to the respective weight of political groups.

Despite the fact that all compromise amendments are not published yet , La Quadrature du Net offers an appraisal of the tabled amendments in IMCO and ITRE committees. These “voting lists” were drafted with the goal of safeguarding rights in the Code for telecommunications, and making sure that the telecom sector can open up to smaller actors, and in particular Community Networks (note that this voting list does not consider the bad amendments tabled by Pilar del Castillo that should all to be rejected).

What is at stake:

Spectrum – Radio frequencies licenses

Mrs del Castillo along with oligopolistic operators wants to extend the length of those licenses to an unreasonable amount of time: 25 to 30 years! While the bigger actors will sit on their pile of licenses and their so-called “market certainty”, other actors such as smaller telecom companies and non-profit actors, will be excluded from accessing the spectrum commons. The on-going negotiations for compromise amendments should promote shared and unlicenced access spectrum, which would favor smaller operators and boost diversity in the telecom sector. To avoid the privatisation and deplation of the public radio ressource, compromise amendments should also ensure that national regulatory authorities (NRAs) will deprive an operator from their exclusive licenses if they fail to deliver on its commitments to make an effective and relevant use of the allocated band.

Access to network

To encourage local control adapted to local needs (“granularity”), and the diversity of ISPs in telecom markets, it is necessary to get both active and passive wholesale access. All actors must be able to connect themselves to the network either through reasonable passive offers (at the individual line level for example) or through active access if the size of the operator does not enable it to get passive access. The current inequality of offering for smaller actors leads to an inequality in access of the market especially for smaller localities, with significant consequences on competition, innovation, concentration of knowledge and territorial cohesion and development.

The compromise amendments must not give a priority on passive access over the active access. On the contrary, offering both wholesale reasonable passive and active access would ensure the development of small and local actors and thus enhance competition, especially on the market for private companies.

Co-investment and competition

The major challenge for co-investment policies is to allow smaller actors to contribute and participate in the development and establishment of new infrastructures, as a way to foster innovation and economic development. Current provisions for co-investment practices do not allow non-profit or local ISPs to take part to investments, restricting this opportunity only to larger and incumbent actors. Although Community Networks and local SMEs have proven successful in connecting underprivileged communities both in urban and rural areas, it would be only normal to consider them as equal members of the telecoms ecosystem, thus giving them fair and equal access to co-investment opportunities.

Moreover, co-investment in a certain area must be considered an oligopoly of a few powerful actors (on the local level), as the FDN Federation showed in their analysis of the fixed market written for a consultation of the ARCEP in 2016. These oligopolies work as a cartel. The co-investors, in a given area, should be regarded as having the position of the incumbent in that area. Such symmetric regulation would allow welcoming all actors into the market.

Open Wifi

Several national laws seek to prevent the sharing of Internet connections amongst several users by making people liable for all communication made through their Wi-Fi connection. In 2017, two German courts have found individuals sharing their Wi-Fi connection liable for copyright infringements committed by their users, which contravene the important principles for intermediary liability set out in the Directive 2000/31/EC (Information Society Directive, also known as the “eCommerce directive”). They were found liable because, despite having been warned by rights-holders about such infringements, they did not take measures to prevent them. Such liability is a major threat for small wireless community network and a clear distortion of competition since ‘traditional’ Internet access providers cannot be liable for infringements committed by their users, even if they are aware of them, as provided by article 12 of Information Society Directive.

Encryption and privacy

Encrypting communications content from end to end by default is the only way to effectively minimise the impact of security incidents. Any other measure would barely have any effect. Furthermore, encryption is the main technical means by which to implement the ePrivacy Directive 2002/58/EC, article 5(1), which prohibits any “kinds of interception or surveillance of communications (…) by persons other than users, without the consent of the users concerned”. It is also an efficient way for users to implement their right to the art 7 of the EU Charter of fundamental rights that protects communications. The EECC should thus include provisions ensuring that electronic communications are encrypted from end-to-end.

Besides, the Code must comply with the CJEU ruling from 21 December 2016 (cases C-203/15 and C-698/15, “Tele2”), and include a provision that prohibits blanket data retention of traffic and location data for all subscribers and registered users.

Free software on terminals

Article 3.3(i) of Directive 2014/53/EU of the European Parliament and of the Council provides that device manufacturers have to check every software which can be loaded on the device regarding its compliance with applicable radio regulations (e.g. signal frequency and strength). Such a provision is not only a severe burden for manufacturers but also violating the customers’ rights of free choice. They will be locked in to software of the manufacturers because they cannot choose the software and hardware independently anymore. This aspect is crucial because alternative, especially Free Software, often satisfies special requirements regarding security, technical features and standards.

It may severely hinder the development of radio local area networks by Community Networks, which are often managed by individual volunteers using custom Free Software adapted to such networks. Since Free Software may be freely studied and improved by anyone, they should not be subject to the restriction imposed by article 3.3(i) and the adoption of the Code is the opportunity to remove such restrictions.

Universal Service

Today and tomorrow, an Internet connection is at the centre of everyone’s life. Being connected to the Internet cannot be restricted to a slow and uneven connection. Considering the importance of a public service, especially in allowing less privileged people to participate in society, the USO mechanism should be enhanced in order to enable the beneficiaries to get a broadband access. We support the draft compromise amendments from IMCO that seek to ensure an equality between consumer benefiting from USO and other consumers.

The European Electronic Communication Code is the only opportunity before many years to break the oligopolistic disaster in telecommunications in most Member States. We must look at the positive consequences on competition, on local socio-economic fabric and users’ civil rights that the funding and development of sustainable networks will have. The threat is big and the main rapporteur, known for her close interests with corporate telcos, takes advantage of this recast to reinforce the status quo. Members of European Parliament must refuse corporate lobbies’ blackmail and support initiatives that have already been successful to develop those local and sustainable networks.

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