An Arabic version was published on 7iber on August 7, 2016. Translation sponsored by Gibran.

By Reem Almasri

If you try to make a voice call using WhatsApp on any 3G or 4G network in Jordan, you will get the following message: “your service provider does not support these calls on WhatsApp”.

Jordan’s Telecommunications Regulatory Commission (TRC) intervened to halt telecommunications companies’ decision to impose new fees on applications offering free VoIP services (e.g WhatsApp and Signal). Customers rejoiced, though they did not realize that telcos quietly blocked these services on 3G and 4G networks.

The social media accounts of telcos (Zain, Orange, and Umniah) abound with tweets by clients complaining about the lack of service—tweets left unanswered. If you call customer service, the operator will walk you through various interpretations. The first is that the problem is on your end, since he is able to make these calls. Another is that the problem originates in Whatsapp’s application itself. Or, the operator might attempt to end the call by re-documenting the complaint with the Follow-up Department. This way, the telco profits through the five piasters you have paid to make the phone call.

In any telcos’ conference or financial report in Jordan, the discourse that strongly emerges is that companies would not be able to invest in and develop the quality of a network or expand its range in the event of a decline in profits due to Over the Top Services (OTTs). This term is used to refer to applications that provide competing services, such as calls and text messaging.

In his statement to 7iber, Yousef Mutawe, Chief Technology Officer (CTO) at Zain, said that “these services are not available” on 3G and 4G networks. Further, a spokesperson of Facebook, which owns Whatsapp, said that the interruption to services is not due to a technical malfunction on Whatsapp’s end.

“Jordan’s telecommunications sector is in danger”, says Mutawe, especially since the gigabyte rate in Jordan is lower than prices elsewhere. “How is it that these applications can reap profits without incurring any fees to build or license the Internet network, which we have built ourselves?” wonders Mutawe.

Globally, telcos are waging battles to get their share of the profits made by the applications rampant on networks. Yet, the principles of Net Neutrality, user rights protection, and maintenance of competition dominate the debates between civil society organizations and bodies regulating the telecommunications sector.

This is the first article of a two-part series in which we address the authority of telcos to block applications with VoIP services in Jordan. In this first article, we ask: how legal is the authority telcos grant themselves in regulating or blocking data within their networks, or in blocking certain services? Where does Jordan stand in the global debate on the principle of Net Neutrality? In the second article, we ask: how might the budget figures of telcos in Jordan explain the losses incurred in recent years?

The struggle in defining OTTs

Telecommunications companies attribute their reduced revenues to the emergence of new, competing applications that provide services, such as voice calls and text messages, previously offered solely and exclusively by telcos. Sometimes, telcos include in the term (OTTs) services that are not directly competitive, but are a source of trouble because they require a high-quality network and large data capacity. These applications, which are in increasingly high demand, might be video streaming services (YouTube or Netflix), audio streaming services (SoundCloud), or digital radio services (Pandora and Spotify).

On the other hand, bodies regulating the telecommunications sector in India, the United States, and the European Union define OTTs more broadly for regulatory purposes. The definition encompasses any content, service, or application offered to users through Internet services, starting from chatting applications like Whatsapp and Skype, televised or music streaming services, and ending with any website.

The definition may therefore expand and contract in how it encompasses applications and services according to political and regulatory purposes. For telcos, the chief purpose of the term is to justify the companies’ desire to grab a share of these applications’ profits. In naming a service “over the top”, companies highlight this service from the rest of their content, marking it as a ‘piggybacker’ on their primary networks. In Jordan, the debate about regulating OTTs constricted to revolve around how the TRC and Jordanian telcos may define “Internet communication applications”, or anything which may compete with voice and text communication services, such as WhatsApp, Viber, and Telegram.

What is the mechanism of regulating these services in Jordan?

Quietly, telcos decided to document and impose prices on applications that provide Internet calls. Then, they quietly blocked these services on their networks after the TRC intervened to prevent their attempt at pricing. TRC’s Executive Director, Ghazi Jbour, told 7iber that the TRC does not interfere with the prices set by telcos for their services, but that it intervenes in the foundations on which pricing is determined, especially if pricing breaches the principle of fair competition. Jbour had learned of telcos’ decision to “document” and create subscriptions to Internet calls through a newspaper advertisement.

According to the lawyer Rakan Baybars, who specializes in telecommunications law, the TRC’s only avenue for intervention in the decisions of businesses is the protection of consumers’ interests. Baybars believes that when telcos all agree to raise the price of or block a particular service, they impose an indirect monopoly on the market since they rob the user of the option of transferring to another provider.

When asked about the legal basis on which the TRC was able to intervene and stop the decision to raise prices, Yousef Mutawe said that “the meeting was amicable. After all, we are all the people of this country.”

As for blocking Internet calling services, Jbour noted that, so far, no complaints from citizens have reached him. He added that “if any citizen complains about the blocking of these services, his complaint will be handled”.

The Telecommunications Law states that telcos ought to provide a telecommunications service for a fee. According to Baybars, telcos may argue that OTTs are services equivalent to Internet services, and are therefore services for which the user does not pay. However, he adds that “in effect, the expense paid by the user in exchange for an Internet subscription meets the demand of the law”.

As for telcos’ attempts to withhold part of the profits of these services, Baybars believes that the developers’ argument should hold: “whoever offers the service is the one who should be paid, and telcos did not participate in the development of these applications”. For Jbour, telcos, according to their licenses, should provide voice and data, and are not obligated to provide Voice over Internet Protocol (VoIP) services. And so we ask, “but isn’t VoIP data paid for through an Internet subscription?” To this question Jbour says, “this is the current debate”.

If you own the network, do you possess the authority to regulate what passes through it?

According to lawyer Rakan Baybars, in Jordan, legislative systems pertaining to telecommunications are devoid of any direct protection of the principle of Net Neutrality. In his legal opinion, however, telcos ought to provide full “access” to the Internet in exchange for what their clients pay. “The moment that content passing through networks is classified by companies is the moment that the value of the service I paid for as a client diminishes.”

In recent years, the news of telcos’ cooperation with governments to block Internet sites, cut Internet services, or harness networks for the illegal surveillance of content led to the formulation of the Manila Principles by a number of civil society organizations around the world. The Manila Principles serve as a reference for the relationship between telcos and the content that passes through their networks. These principles emphasize the role of telcos as a neutral intermediary that does not differentiate between the data traveling through its networks except through a court order. This does not only protect the user, but also protects a telecommunications company as a party that may be held accountable, without legal justification, for what passes through its networks. These principles emphasize that the relationship between a telecommunications company and an Internet user should be no different from the relationship between the post office and a customer. Just like a customer pays in exchange for delivering a package, without the post office’s interference with the package’s content, a telco operates as an intermediary of a content with which it does not interfere.

It was not only the institutions behind the Manila Principles that have tried to neutralize telcos in relation to the content or services to which they mediate access. Around the world, bodies regulating the telecommunications sector have also attempted to maintain a competitive environment. This ensures equitable entry to the market for smaller players who do not have the same financial resources that large corporations own.

The debate about regulating OTT services reached its peak in the United States when the Federal Communications Commission announced a change to the Internet’s category from “telecommunications service” to “public interest.” This decision was supported by the Court of Appeals in early June, protecting user rights and preserving the role of telcos as a mediator. After this decision, companies like Verizon will not be able to give preferential treatment to streaming services such as Netflix, nor can they block or tamper with the speed of any service. As for the European Union, it endorsed the Network Neutrality law, which will not allow any telecommunications company to tamper with provided services, either through preference or obstruction. In turn, India banned all “Zero Rating” agreements that telcos used to sign with applications, such as Facebook’s Free Basics, to allow user access without an Internet subscription.

Mutawe says that Zain as a company is not opposed to the principle of Net Neutrality, but that the Internet should be divided into two tracks, each for a price: a special track that provides VoIP services such as broadcasting video, radio and browsing; and a ‘regular’ track that provides Facebook and browsing services. “Today we need a change to the user’s mentality accustomed to seeing the Internet as whole network only,” he says. “This is a mistake and hurts the sector and the operator.” But when we raised the question of the technical difficulty in differentiating between audio and text applications, considering that services tend to merge in one application such as Facebook, Mutawe responded, “What do we do then? Our other option is to raise the gigabyte price.”

The Body of European Regulators of Electronic Communications (Berec) presented a paper in January 2016 that elucidates the impact of these services on the network. The paper surveys national legislators in all European countries as to whether they consider OTTs to be competitive with the services provided by telcos. Few of the national telecommunications regulatory authorities consider that correspondence services and applications have become an alternative to traditional call and text messaging services, based on the competition criteria Berec had established. For instance, European users do not consider these applications a substitute for audio calls and messaging, due to their low quality when compared to original telecommunications services.

The mechanism regulating the relationship between telcos and the data that passes through their networks is usually open to public consultation. Telecommunications regulation bodies in India, Brazil and the United States have published the strategies they follow in regulating the principle of Net Neutrality and the relationship between companies and applications on their websites, and requested that institutions and individuals share their comments.
According to Jbour, there are current negotiations attempting to regulate the relationship between telcos and “applications” in the Arab region through the Arab Regulators Network (Aragnet), headed by Jordan this year. But he does not see the need to put forward a strategy for public consultation because “what matters to the citizen is that he does not have to pay for added services, which is what will happen.”

Baybars, on the other hand, says that if the TRC wants to be consistent, it should follow its own procedures, which require that all decisions related to the telecommunications market be subject to public consultation.