Framework for Internet Telephony in Russia


Philip Lamzin, Lawyer / Denton Wilde Sapte

Alexander Stolyarenko, Legal Assistant / Denton Wilde Sapte

Internet telephony or Voice over Internet Protocol (VoIP) is attracting more and more attention. The growth of the VoIP market has given rise to numerous legal issues (mainly concerning security and privacy) which require regulators to work out a framework in order to protect the end-users of VoIP services, as well as to accommodate the interests of the telecom industry.

The current Russian VoIP market is not regulated. However, the intention of the industry to work out rules to control Internet protocol (IP) activities in Russia was recently made clear during a meeting of the Russian Union of Industrialists and Entrepreneurs. The initiative is driven by mobile operators who are suffering from the growing competition of the VoIP providers.

Now, once Russia faces a difficult task of developing the regulation of Internet telephony. International practice and the experiences of other jurisdictions should be carefully considered.

U.S.

In the United States the regulation of VoIP services is characterized by the competition for authority between the federal government and the states. The Federal Communications Commission (FCC) takes the view that the technological characteristics of VoIP give it an “inherently interstate” nature and it should therefore be immune from state attention. However, if VoIP services are “fixed” within a state territory, the federal authority will not apply and the state may impose its own regulations on such “fixed” VoIP providers.

General rules regulating the telecommunications industry (e.g. access and universal service charges) are also applicable to VoIP services depending on the type of services provided by the operator.

Given the recent dramatic increase in the use of VoIP the FCC has ruled that all VoIP carriers should provide free calls to emergency services (e.g. 911) and wiretapping access for law enforcement.

EU and U.K.

At European level provision of VoIP services is broadly covered under the new regulatory framework (NRF) for electronic communication that is comprised of five Directives adopted in 2002. These favor light regulation of VoIP. The legislative system within the EU means that rules towards VoIP vary from county to country and each has their own idiosyncrasies.

Among other things covered under the NRF, are issues of authorisation and notification of VoIP services, access to emergency services, number portability and interconnection between electronic communication networks. However, the main issue is whether VoIP is classified as a Publicly Available Telephony Service (PATS) or an Electronic Communications Service (ECS). Also, if the service provider meets the criteria stipulated both in EU and national legislation, it will be subject to certain obligations (e.g. free access to emergency services) and may possess certain rights associated with such status.

As an example, Ofcom (the UK’s communications regulator) identifies four types of VoIP: (1) peer-to-peer, (2) VoIP Out, (3) VoIP In, and (4) VoIP In and Out. Taking into account the individual characteristics of each type of VoIP, Ofcom considers Type 1 VoIP services unlikely to constitute an ECS. Type 2 and 3 VoIP services are likely to be regarded as Public ECS. Type 4 VoIP services may be deemed PATS provided all four criteria laid down by Ofcom are met.

Following the example of the US, the European authorities are attempting to prioritize and review the current VoIP regulations to take into account the further development of IP technologies.

U.A.E.

The United Arab Emirates may be regarded as an example of a completely different approach towards VoIP regulation.

The use of VoIP for international calls is banned in the U.A.E. This ban was formally introduced by the government for security purposes.

At present, the Telecommunications Regulatory Authority (TRA) of the U.A.E. has set out detailed regulations in respect of VoIP services. The current legal framework allows the use of VoIP only within the U.A.E. and only if such services are provided by either of the two licensed U.A.E. companies. Such regulation by the TRA hinders the development of IP infrastructure and investment activities in the U.A.E. market.

Russia

It follows from the above overview that there exists no uniform solution: VoIP regulation varies across different jurisdictions. The regulatory approach taken by governments towards VoIP largely depends on the degree of state involvement in the telecoms market.

Russia now needs to work out its approach towards the regulation of VoIP services. The key practical issues to consider are: (a) wiretapping access for law enforcement, and (b) balancing the interests of the major operators against fair competition which, in turn, will stimulate innovation and bring new technologies to the market.