The German telecommunications regulator, the Federal Network Agency (Bundesnetzagentur), (FNA), has launched an inquiry after publishing a discussion paper (English version) on interoperability between messaging services.
Messaging services are services that enable interactive communication, such as chat, internet telephony and video telephony, and–unlike classic telecommunications services such as telephony and SMS–are provided via the open internet. They are therefore also called over-the-top services (OTT). Such services may be subject to (limited) regulation under telecommunications law following the adoption of the EECC. Whether this is the case cannot be assessed in general terms but must be examined in each individual case.
Feedback on the discussion paper is possible until mid-March, and the FNA plans to publish a report in July. As there may be potentially significant measures, stakeholders should take the opportunity to comment.
Objectives of an interoperability obligation
The German Telecommunications Act provides, on the basis of the European Electronic Communications Code (EECC), that the FNA may, under certain conditions, oblige providers of so-called number-independent interpersonal telecommunications services to make their services interoperable.
In the case of messaging services, which have radically changed telecommunications usage in Germany, any-to-any accessibility (ie everyone can communicate with everyone, as in the fixed network or mobile telephony) does not exist. The most-used messaging services only allow communication with users of that same service, which is why, for 93 per cent of users, according to a FNA study, network effects are a major reason for choosing their primarily used service.
The obligation to make services interoperable is intended to help break up the market power of dominant providers and reduce potential for abuse. Advocates of such an obligation believe there should be competition for functions and data protection levels, not just competition for the most users (‘competition in the market instead of competition for the market’).
Critics object that a harmonisation of standards will lead to a lowering of the level of data protection and IT security of messaging services, which is disadvantageous for users.
Opportunities and challenges of interoperability
Providing an overview of the effects and challenges posed by the possible introduction of an interoperability obligation, the FNA discussion paper does not focus on the regulatory prerequisites of such an obligation, but instead on the technical approaches to interoperability.
The FNA first describes how messaging services are structured (centralised or federated network architecture) and presents the ways in which any-to-any communication can be achieved, namely through the use of bridges (indirect operability), the opening of interfaces (APIs) or (complete) standardisation.
The effects on competition, data protection and data security are examined on the basis of three key questions:
How is the need for interoperability rated by users and providers?
According to various consumer surveys, users would have only a restrained or no interest at all in such an obligation. On the provider side, too, there seems to be no such interest, according to the FNA.
What is the impact of interoperability on competition between messaging services?
According to the FNA, the assessment of the effects is complex. This is due, among other things, to the fact that users engage in ‘multihoming’, ie using several OTTs at the same time. On the one hand, interoperability could break through network effects (if a service has a large number of users, it is easier for it to gain further users), on the other hand, innovations would have to be coordinated with the market participants, which could lead to a weakening of the willingness to innovate.
Can data protection and data security be reconciled with interoperability?
In the case of any-to-any communication, the other service providers would also obtain personal data due to the mutual exchange of data. In particular, it would be possible for market-dominant providers to obtain such data, although users would want to prevent this precisely by choosing alternative services.
Messaging services under scrutiny
The discussion paper notes that for the question of interoperability, regulation under telecommunications law is not the only decisive factor; the effects on data protection and data security must always be considered together.
In addition to the discussion paper, the FNA recently published a 70-page report on the results of a consumer survey on the use of online communication tools in Germany. The Federal Cartel Office (Bundeskartellamt) (FCO) and the Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik) (FOIS) have also launched their own investigations.
In November 2020, the FCO launched a sector enquiry into messaging with a view to identifying possible violations of consumer law or shortcomings in its enforcement. The interim report was published in November 2021 and deals in particular with the results of a detailed survey of more than 40 services available in Germany, numerous expert discussions and the evaluation of various studies.
Within the framework of its existing cooperation with the FOIS, the FCO consulted experts on technical details and security issues relating to messaging and video services. The FOIS published a related report on the operating principles, safety requirements and security features of the latest messaging services.
Outlook for interoperability
In view of the high legal hurdles, there is unlikely to be a commitment to interoperability any time soon, particularly as the European Commission must determine that intervention by the national regulatory authority is necessary. In addition, end-to-end connectivity between end-users must be threatened to an appreciable extent, however, this does not only refer to number-independent, but to all interpersonal communication services, ie also fixed and mobile networks.
Against this backdrop, it is surprising that three authorities are concerned with interoperability to this extent.
Nevertheless, potentially affected companies and interested parties should comment on the discussion paper so that any action planned by the authority is drawn up on the basis of expert opinion, comprehensive debate and full facts.
