The Autorité de Régulation des Communications Électroniques et des Postes (ARCEP), which is in-charge of regulating telecommunications in France, has said in a report that just like telecom operators, mobile devices and other internet-access devices also have a bias and that prevents an open Internet. The report is titled ‘Devices, The Weak Link In Achieving An Open Internet’.

According to ARCEP the internet access chain doesn’t stop with internet service providers (ISPs):

Other intermediaries have the power to hamper users’ ability to access certain online content and services. This is true of devices (smartphones, tablets, computers, etc.), their operating systems and their app stores, which are controlled by a small number of economic actors.

ARCEP says that it has mapped out a “large number of impediments to internet openness that stem from devices”. Some of these aren’t intentional on the part of the device manufacturers or the operating system (OS) providers, because they stem from the “devices’ inherent technical constraints.” It’s not possible to draw a conclusion regarding restrictions of this nature, however, the regulator says there’s reason to believe users are aware of such technical limitations, and select devices based on their internet access requirements.

On the other hand, impediments created because of “willful actions by device manufacturers or OS providers, such as those that derive from editorial policies or competition models between systems,” can be studied conclusively and effective action to prevent such impediments is necessary. In this regard, ARCEP says that:

Some restrictions that device manufacturers or OS providers have deliberately put into place harm the distribution of content or access to certain online services, with no proven positive counterpart and so, a priority, at end-users’ expense. A case in point is when an app store refuses to index a service, without justification. This is also what happens when a user is made anxious about installing an app from an alternative app store when, by all evidence, it is no less reliable.

Walled gardens & pre-installation of apps can be positive?

However, ARCEP’s stance on walled garden systems and pre-installation of apps is worrying to say the least. The regulator says that:

Some of these impediments have a positive counterpart for end users. For instance, ARCEP ascertained that walled garden systems could be synonymous with increased guarantees in terms of security, privacy protection pledges or a more user-friendly experience for the less technically savvy users. By the same token, the pre-installation of apps, which creates the risk of skewing internet users’ access to certain content, offers the advantage of allowing consumers to use a new device straight out of the box.

This in no way changes the fact that both walled garden systems and pre-installation of apps is against the principles of net neutrality. A regulator of ARCEP’s stature, and one that is in fact advocating net neutrality, should not be making such statements.

Need for policymakers to step in

The regulator says that because time is not a luxury most players in this space have, it could “allow a handful of players to consolidate their hold on the market.” Hence, “public policymakers may need to take action.”

ARCEP’s suggestions

Data-driven regulation: Tools need to be employed for “collecting information from device manufacturers and OS providers, end-user reporting, promoting comparison tools, obligation of transparency towards professional users,” with the objective of firstly improving the policymakers’ expertise, and secondly keeping consumers informed about their choices.

  • Gather information from device manufacturers and OS providers, and disseminate it
  • Gather reporting from end users, both consumers and businesses
  • Promote comparison tools
  • Impose transparency on the indexing and ranking criteria that app stores use

Competition: ARCEP says that it “views competition as a paramount form of leverage for guaranteeing internet openness: by better empowering users, it could make internet openness a leading criterion for users in their choice of device.”

Limiting bias: Internet openness has already been negatively affected due to the bias of device manufacturers and OS providers. In order to remedy the situation, ARCEP “recommends measures both for limiting the bias that devices induce over the content consumed, such as the ability to delete pre-installed apps, and to maintain the internet’s bounty, such as opening up access obligations for APIs.”

  • Closely monitor and, once tried and tested, assess initiatives designed to facilitate device switching. Lift certain restrictions imposed by key device market players, more directly
  • Allow users to delete pre-installed apps
  • Enable alternative rankings for the online content and services available in app stores
  • Allow users to easily access applications offered by alternative app stores, once they have been deemed reliable
  • Allow all content and service developers to access the same device functions
  • Monitor the evolution of devices’ content and service exclusivity practices

Dispute settlement mechanisms: ARCEP “proposes introducing a rapid and pragmatic procedure for settling disputes regarding internet openness, notably for the benefit of professional users, and particularly SMEs and start-ups.”

Read the full report here.

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