Stumbling block: The internet part of the new ITR treaty

In the end it was a disappointment that the treaty on International Telecommunications regulations (ITRs) that had been under negotiation for two weeks at the ITU World Conference on International Telecommunications (WCIT-12) was not acceptable to 55 countries, and that, as a consequence, these countries did not sign the final version of the international treaty (89 did sign).

After two weeks of sometimes fractious negotiation—1,275 proposals were discussed in all—the contentious issues were significantly watered down. However the dissenting countries felt that the key issue—anything in relation to the internet—should not be included at all and, quite correctly, did not compromise on that.

In the end the internet issues were put into a new article 3A, but there was a very strong feeling among those members that the treaty should not include any regulatory items in relation to the internet, despite the fact that such rules would only have a voluntary status (adherence to the ITU treaty is voluntary not compulsory).

The countries that did not sign included the USA, UK, Canada, France, Germany, Switzerland, Japan, Australia, New Zealand, Netherlands, Denmark, Czech Republic, Sweden, Costa Rica, Poland, Norway, Egypt, Kenya, Qatar, Serbia, Greece and Finland. The Treaty that was accepted by the other members has the potential to fundamentally change the way the internet operates, and this was simply not acceptable to the group who did not sign.

Differing views on what the internet is and is not

Well before the start of the conference we had suggested that the various issues should be properly separated and that anything to do with internet content should be left out. A key problem in the USA is that anything internet is classified as content, while the rest of the world categorises the internet in two parts—a content element and an infrastructure element. Without a proper separation between these two elements it was impossible to reach consensus. It is also interesting to see that the US was promoting and talking strongly about competition and liberalisation, while at the same time its own national market is one of the least competitive in the developed markets—and all indications are that this market will become even more dominated by two or three vertically-integrated telcos in that country. Obviously their message to the outside world is different from the one they preach at home.

But on issues such as security and SPAM control the US and its allies took the correct position and opposed any internationally-regulated interference.

Successes and failures

However, according to seasoned insiders of international telecommunications treaty conferences, WCIT-12 was a success in many ways and the fact that it will not be formally ratified by some countries is not a particular grave concern. They have some 89 (largely developing) countries so far who have committed to the compromises which were reached. The agreed text is significantly moderated from the initial ambit positions which came in to the conference on issues of security, naming and addressing, internet governance, CLI, routing information, charging arrangements, SPAM, fraud etc. The text is now a great relief to even those countries which have not signed up (the final compromise package was a whisker away from total consensus). Those countries not signed up can regard the text as a reference manual for behaviour they can expect from signees.

The new text gives us the assessment of the playing field the industry now find ourselves and the outcome of a very fruitful exchange of positions on government regulation versus the expectations of free market forces. The ITU Plenipot in 2014 will be a very interesting venue to now divine the way forward where the ITU can maintain its role as a forum in telecommunications and to adjust to the change which has revealed itself clearly by the WCIT process. Instead of a total focus on regulation any future WCIT may need 1 week of multi-stakeholder discussion preceding the regulatory discussions and text which might follow in a second week so that we get the balance right.

What did get through?

In general terms, the treaty sets out principles for ensuring the free flow of information around the world. New provisions in the text place special emphasis on future efforts to assist developing countries, on promoting accessibility to persons with disabilities, and on asserting the right of all people to freedom of expression over ICT networks. Some of this has been discussed in previous blogs.

Other new provisions include a resolution to create a single, globally harmonised number for access to emergency services, new text mandating greater transparency in the prices set for mobile roaming, and new provisions to improve the energy efficiency of ICT networks and help combat e-waste.

The issues that provoked what was often very heated debate included network security; unsolicited bulk content such as spam emails; the definition of entities providing services under the terms of the treaty; the principle of non-discriminatory access of countries to each other’s networks; and whether or not to include language on freedom of expression in the Preamble text of the treaty.

The hotly debated issue of ‘taxing the internet’—the so-called ‘Sender Party Pays’ proposal—never made it into the treaty.

No consensus any more

A disappointment that people involved in ITU conferences acknowledged was the move to use of voting, in one instance. According to them this precipitate action was naive, and this approach would ultimately deter interest by developed countries in the telecommunications work of the ITU - if they felt they would get rolled on any issue by weight of numbers. Thus the tactic was unwise and could lead to the demise of the ITU as we know it. However, there is the hope that developing countries will come to this realisation. It is a line in the sand which ITU members have known about and respected throughout the history of the ITU. Any reverie over this short term success should be tempered that the fact that the mould of consensus may now be lost as a primary asset of the ITU.

The future of the ITU, the ITRs and the internet

What does all this mean for the future of international teleco, since the treaty is voluntary and the countries who declined to sign still dominate the bulk of the traffic that is going over the internet.

However the role of the ITU has become more difficult with key countries now not being signatories to the treaty. This is something the ITU cannot, and will not, ignore. Many of the issues discussed that were debated in great detail will now need to be followed up, in line with the clear messages coming out of WCIT-12. The ITU is well-positioned to assist in finding better ways, structures and platforms where these issues can be addressed.

This means that over the next 2-5 years the ITU needs to come up with better structures and platforms that will allow all member states to feel more comfortable with future treaties and regulations; it will also have to modernise itself, so as to become more transparent. WCIT-12 was a good example of openness and this should now be used to further reform the organisation itself. All members—including those who did not sign the treaty—are still fully committed to the ITU and therefore the agency remains in a very strong position to take these issues beyond WCIT-12.

Also, those who did not sign broadly agreed to a multi-stakeholder approach towards the outstanding internet issues and this again leaves the door open for follow-up discussions.

A reality, however, is that the old telecoms world dominated by the traditional telcos and their relationships with their governments is disappearing and completely new, more commercial structures are emerging. In such a changed environment it is uncertain how relevant old telecommunications regulations will remain, beyond basic access and interoperability.