WCIT splits over the issue of "operating agencies"

Telecoms conference can't move forward until it's agreed who the regulations will actually apply to

Conference chair Mohamed Nasser Al-Ghanim has put forward a compromise solution - but level of ambiguity means it is unlikely to be agreed to

The World Conference on International Telecommunications (WCIT) has dramatically split and may grind to a halt until a key distinction over whom precisely the resulting international treaty apply to is decided.

At the heart of the issue is the term "operating agencies". Currently the international telecommunication regulations (ITRs) apply only to "recognized operating agencies" - and that means large telecoms operators in each country1.

Some countries want that term changed to just "operating agencies", which would mean the ITRs become applicable to a vastly larger number of groups - in fact, "any individual, company, corporation or governmental agency which operates a telecommunication installation".

So rather than just AT&T, British Telecom or Italia Telecom, the international treaty would then apply to Google, Facebook, Microsoft, eBay, in fact just about every Internet company, as well private network operators, leased-line operators, amateur radio operators, even government agencies2.

Lined up against this measure are Canada, CEPT, Citel, Japan, Korea, Mexico, Poland and the United States. For it are the Arab States, African States, Brazil, India, Iran, Philippines and RCC.

In an attempt at compromise, the conference chairman late yesterday published a document that suggested the broader term "operating agencies" be used but that exclusions be allowed through reference to CS 38 in the ITU Constitution (note: we originally wrote, incorrectly, that this was article 38).

A quick reading of CS 38, reproduced below, does not give any clear indications over how an exclusion process would work however. Nor to whom it would apply. The end result would therefore be that many thousands of companies operating over the Internet could find themselves having to comply with the regulations in some countries but not in others.

That is a situation that Western governments have recognized is a significant impediment to the Internet economy and have been working hard at unraveling in recent years over a whole range of laws, particularly privacy and data exchange.

As a result of what many see as a dangerous ambiguity, the chairman's compromise has been fiercely resisted, with Poland stating bluntly in a closed meeting that they would not sign the ITRs if the solution is adopted.

Al-Ghanim along with key ITU staff, Richard Hill and Doreen Bogdan-Martin, search in the ITU Constitution for a suitably ambiguous clause.

You had been warned

The issue of operating agencies and recognized operating agencies was highlighted at the start of the conference as well as explicitly noted in a contribution to WCIT by Canada and the United States.

They proposed that the definitions for both terms, as well as "telecommunications" be agreed to before any substantive work at the conference began. However the request was put to ad hoc group who was asked to return to the Plenary meeting tomorrow with its findings.

Despite ITU pronouncements that it was going to open meetings to all, those crucial ad hoc meetings were closed to ITU members and only with the publication of the chair's document have details around this key argument at the conference come to light.

As the ITU's Secretary General has repeatedly noted in response to criticism that changes of precisely this nature could be forced through the ITU, if there is no consensus position, the status quo will be retained.

What that means is that if the chair cannot find a solution that everyone will sign up to - and it is very unlikely that any reference solely to "operating agencies" will be acceptable - then the ITRs will continue to relate only to "recognized operating agencies".

In the meantime however the entire conference risks grinding to a halt until this issue can be decided.

1: You can find a list of all "recognized operating agencies" online at: http://www.itu.int/oth/T0204/en.

It is worth noting that for the United States - a huge telecoms market - there are only 10 agencies named (AT&T EasyLink, AT&T Wireless, Esatel, Frontier, L/Q, MCI, MCH, Publix, TRT and TyCom). This would expand to hundreds, perhaps thousands, if the term "recognized operating agencies" was adopted.

2: Although Russia argues that military networks would not be included under a different article in the Constitution (48).

Article 6 of ITU Constitution

Execution of the Instruments of the Union


2 The Member States are also bound to take the necessary steps to impose the observance of the provisions of this Constitution, the Convention and the Administrative Regulations upon operating agencies authorized by them to establish and operate telecommunications and which engage in international services or which operate stations capable of causing harmful interference to the radio services of other countries.

Please note: originally this article reproduced Article 38 of the ITU Constitution. In fact the chair's compromise refers to CS 38 - a definition within the Constitution -which appears in Article 6. It is reproduced above.