Paris, 24 May 2016 — La Quadrature du Net publishes an article from Benjamin Bayart, member of the Strategic Directions Council of La Quadrature du Net. This article was written on behalf of the Federation FDN and was initially plublished in French here.



One of the constitutive elements of an open access to Internet as defined in the recently-adopted European regulation on telecoms, is the fact that the end-user can use the terminal of their choice. This element is easy to understand when we talk about mobile access: we should have the right to use the phone or the smartphone of our choice rather than the one the network operator wants us to use. But it gets complicated when we talk about fixed internet access : is the modem a terminal and should it be uncoupled from access itself?

The not-so-easy case of the mobile phone

All smartphones are designed in a similar way. Two computers live together in the phone and run two different operating systems. One of them is what we call baseband, managing the connection with the network and most of the radio/GSM part. The other is the one we use through a touchscreen.

The text of the European regulation does not go into such details and because the phones cannot be taken apart, then we can choose (without meaning to do so) the connexion module to the network because we can de facto choose our terminal.

The projects currently running on these subjects carry, in my opinion, a strategic issue too often neglected by the regulators and legislators: the trust that the user puts – sometimes too lightly – in a technical intermediary of which he might not even be aware.

We have seen for instance that mobile phone is a good tool for mass surveillance (see Snowden’s revelations), that it is a perfect tool to target someone and that the radio part is able to take over the central system and modify it. This is what happens with some anti-theft services, for example: the rightful owner of the phone goes on the manufacturer’s website, requests their terminal destroyed, and on the next time it connects to the network, a technical message is sent to the radio part, which takes over the main system and deletes all its data.

This is an actual service provided to the user. But it also means that all the user’s data are available to the phone constructor and the network operator. With – or without – the agreement of the final user. And at that point, freedom of terminal choice takes its full implications: do we wish to give away so much power to technical intermediaries, and if yes, to which ones?

Land line modularity

In the case of Internet access through a land line, modularity is much more visible. So visible if fact that these devices may become sore eyes in a living room. The end user usually has two or three interconnected elements. One is the converter between the optical fibre socket and more typical network entry, usually RJ45. This equipment is intrinsically attached to the network. It is adapted to the colour that flows through the fibre, and to the modulation type (GPON, ethernet, etc) . This element is often embedded in the ADSL box, as usually provided in France.

The second element is the so-called “box”, because that makes fancy marketing. In practice, it is a router embedding the modem, in the case of ADSL. This is the equipment that is connected to Internet, that is identified with an IP address, that provides WiFi local network, that operates the shared connection between the local network and the Internet, etc. This equipment, when the modem element is removed, is strictly standard. Nothing in it is really specific to the network. It is a small router, a really simple element. So simple, that with a very little effort, we can replace it with our own chosen element. Just don’t tell it to the operator, that makes him nervous .

The third element is the TV decoder. It also embeds other functions, such as accessing a video platform with pay-per-view (the so-called VOD: video on demand). This TV decoder is what the video distribution platform identifies, either directly with an identification, or with a subscribing card, in order to decode the video streams of paying channels, and to know whom to bill for the film viewing. This equipment is bound to the video offer. It is not bound to the network. The technical elements that it operates are not bound to the network in itself, but to the services platform.

Finally, note that phone service is provided either via the box, in the ADSL case, either by a completely distinct equipment, in the case of some cable subscriptions. Technically, the service could be completely independent from Internet subscription, and provided as a stand-alone service, as is the case with VoIP subscriptions with OVH, for instance.

Kill the TV decoder right now

Indeed, the case of the TV decoder is fairly easy. On one hand it is not connected to the Internet: unplug it, and Internet access will work just as well, if not better (since TV streams are no longer carried over, available bandwidth is increased; on ADSL the effect is noticeable, it is negligible with fibre). As it is not part of the access chain to the Internet, it cannot be considered to be an integral part of the network. It is, thus, only a component of the video service. This TV decoder is, therefore, not a terminal used for network access, but rather a terminal used for a service dependant of the network.

Slightly off-topic, but the video service has no reason to be linked to the Internet access provider. That is a plain case of product tying and of leverage used to impose choices to a captive market.

Let’s have a look at the modem

In the case of the PSTN (Public switched telephone network from last century) as in the case of ADSL the end-user was free to choose his/her modem. Whether to take the one of the operator, or to buy one by another seller. This is for instance what happens for bitstream ADSL access The end-user, or the operator, chooses the modem, it is not constrained by the network.

The technical specifications of the networks are known. They are usually not specific to one particular operator, but rather to a given technology. The legal question is whether the modem is an element of the network or a terminal can probably be answered by considering the modem to be the last element of the network. But it so happens that it is technically very simple, and thus could be freely chosen by the user, even though this free choice is not mandatory under the European regulation.

The question of the regulatory definition of the modem, when incorporated into another equipment, is uninteresting. One might either decide that the status of the overall equipment has precedence, and then the modem is integrated into a terminal that must be a free choice of the end user. Or one decides that the status of the modem, as last element of the network, has precedence, in which case it must be a free choice of the user since it is a standard and simple replaceable part, as seen above. If free choice of the user is mandatory, then the end user must be proposed a version of the subscription with the two equipments separated, without undue additional cost (and thus with a noticeable discount if not using one of the devices, or none of them).

We should therefore come to a market situation where it is acceptable that the user does not have the free choice of his/her modem under the European regulation on telecoms but where this free choice would come from the competition law and consumer protection and where the subscriptions without modem would be cheaper than the subscriptions with modem. All other combinations correspond to a market failure and should be corrected by the regulation, either on the side of the ARCEP (French national regulatory authority) or on the side of the DGCCRF (french administration for competition, consumption and fraud control).

According to this interpretation the modem is not a terminal under the European regulation but the last devise of the network. It must respect technical choices of the network (for instance an ADSL modem will not work with fibre). It remains to be seen whether the box is a terminal within the meaning of the regulation.

Is the box a terminal?

For the regulator this is probably the most complicated question. However after explaining the two previous points the answer become quite simple.

The modem part is the network termination point. It is a part of the network and therefore cannot be considered as a terminal within the meaning of the European regulation.

The parts dedicated to services (whether the phone module over IP or tv-box descrambler) are not linked to the network access. They should be therefore considered as terminals linked to the services that the end-user subscribed. Whether or not these services are coupled with an internet access is a very different matter which fall under the scope of the sale and thus of the competition law. Or it can fall under the scope of the regulation if the network does an excessive prioritisation of its services. But here the question of the terminal is not relevant.

After this division is done the box is a simple router. This router sets up the connexion, gets the public IP address, manage the network sharing, in brief: carries out the Internet access and connects the services that have a special priority. This device is the terminal that establishes the grid connection. This is this device that enables for instance to forward the Web connection that is in charge of connecting to the Internet a website published by the end-user (provision of services of his/her own choice within the meaning of the regulation). Typically this is this device that can take care of parental control in order to make this control effective on systems connected via WiFi to the family network.

When the European regulation mentions the free choice of the end-user for the terminal, it has to talk about the box, simple home router, because all other elements are in fact services that the regulation mentions separately.

Consequences

When we consider this issue with a strict technical point of view of what is a terminal or not in the network access offer and the division between network and services then we get a clear understanding of what the European regulation says.

The operator is free to impose a precise modem. The end-user should have the right to choose the box, the home router. Therefore it should exist an offer without the box and this offer could contain the modem, separated from the box.

For the modem it will be the normal competition law which will occur. If it’s a standard modem that respects a well known rule and that it already exists an open market for this kind of modem: then it may be also let to the free choice of the end-user.

The terminals such as computers and tablets are generic and used to access all services available on the Internet. The specific terminals (tv-box-decodeur, phone module, etc.) are linked to the service. However this is in the context of this service coupled or not with the network access that the analysis of a potential saletying practice between service and terminal should be done.