VoIP: a regulated service? It depends...
Several of our clients provide services which imply Voice over Internet Protocol (VoIP) such as internet telephony related as well as other groundbreaking technologies. The question they want us to analyze is whether VoIP services are to be considered as telecommunication services in the sense of the act of 30 Mai 2005 on electronic communication networks and services (Telecom Act). As lawyers, our answer to such question has to be: “It depends...”.
1. Definition of an ECSThe Telecom Act defines a electronic communications service (ECS) as a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services which do not consist wholly or mainly in the conveyance of signals on electronic communications networks.
2. Application to VoIPSpecifically the question whether a VoIP service can be qualified as ECS depends on several factors. In general, the following four VoIP services may be distinguished: 1. peer to peer VoIP, which does not allow connections with the public switched telephone network (PSTN), but only the establishment of communications between users connected to a server through a specific software; 2. VoIP services to the PSTN without specific phone number allocation (Skype out type of services) which do not allow receiving telephone calls from the PSTN; 3. VoIP services which are commercialized independently from the internet access, and for which specific phone numbers are allocated. These services offer the possibility to place and receive phone calls from the PSTN. 4. VoB services (using IP technology) having a geographic number on a national level. These services can under certain conditions be assimilated to ECS (one criterion is whether the operator has a control on the quality of the services as a whole).
3. Consequences of the qualification as ECSIf a service is qualified as ECS, a provider would have to comply with the telecommunication regulation. The main obligations in this respect include the obligation to notify the activity to the ILR, to transfer all information to the ILR, including financial information, that is necessary to the ILR to guarantee compliance with the provisions of the applicable laws and regulations, to pay the annual administrative fee and to provide to every end user the possibility to make emergency calls and grant access to directory assistance.