EC Confusion and Prejudice around the OTT terminology

I have written in the past that the OTT (Over the Top) acronym is toxic and should not be used, except possibly in a very specific context of describing how a digital service is delivered to end users. The European Commission recently issued a 'public consultation on the evaluation and the review of the regulatory framework for electronic communications networks and services' in which the acronym OTT is used repeatedly. This is an important document, designed to flesh out major evolutions in telecom regulation.

I never imagined that the European Commission would use the term OTT to describe a type of player in the industry.  Not only that, but that they would do it without any consistent definition and in the context of an official consultation: the commission can't seem to agree if the term designates market players or services.

Consider for a moment how cautiously BEREC handles the term ‘OTT’ in its recent report:

“OTT is a term frequently used but often not clearly defined. Some use the term to define a group of actors; others use the term to qualify a category of service… BEREC acknowledges that the term OTT might be regarded as incorrect or having a negative connotation.”

Compare this to the way in which the EC use the term in their consultation. In the document's introduction (p3) we read:

"Since the last review in 2009, electronic communications networks and services have been undergoing significant structural changes characterised by [...] more complex competition with the convergence of fixed and mobile networks and rise of retail bundles as well as emergence of new online players (so called OTTs) along the value chains which challenge the traditional role of Telcos and Cablecos [...]"

In this usage, OTT designates market players. It’s not describing types of services but suggesting that it’s intention is actually to target specific companies without defining them. Worse still, it does so by using the terminology coined by network operator lobbyists to designate American Internet Giants. Sure, it's not explicit, but it's there.

Later in the consultation though (p55), things get a little more specific, but no less confusing. "Over-the-top (OTT) services", the commission writes, "are increasingly seen by end-users as substitutes for traditional Electronic Communication Services used for interpersonal communications, such as voice telephony and SMS."

So we've shifted from using the term to describe market players to using it to describe services. The definition seems relatively narrow, although it's also very subjective. How does the fact that users see a service as a substitute for telephony or SMS make it OTT? And who decides which service end-users see as substitutes? Is the commission proposing to do European-wide end-user surveys to determine which online services they see as substitutes?

To me this is a non-sensical definition. Defining the exact scope through the subjective eyes of end-users is absurd and ineffective. Regulatory decisions need to rely on precise definitions, and this isn't one.

But it doesn't stop there! 10 pages further down (p65), the Commission asks about substitutability, and frames the question as follows:

"Do you think that traditional electronic communications services [...] can be functionally substituted by OTT services or platforms with communication elements (e.g. internet telephony services, web messaging services, webmail services, social media platforms, other)?"

One way to rephrase this would be: do you think that the services that end-users think are substitutable are actually substitutable? Confused yet?

Or, alternatively, this is a third, different, definition. And one, incidentally, that includes virtually every online service you can think of, since most online services include communication elements. Are we talking about AirBnB (which has embedded messaging), Call of Duty online (which has live audio communications), or are we talking about Skype and Whatsapp?

I have met my share of policy people who are completely disconnected from reality. I have also met a bunch of smart people at DG Connect over the years. I simply cannot understand how something so sloppy could make it into probably one of the most important EC consultations in the telecoms field in a long time.

It's hard not to think that the incumbent lobbyist terminology wormed its way into the consultation, alternatively describing OTT as services and as a substitute for other acronyms like GAFA (Google, Amazon, Facebook, Apple.) This in itself suggests an inherent bias in the way the consultation was written, and therefore in the way the results will be analysed.

I was tempted to respond, despite the tediousness of it all, to expose that bias, but it turns out I can't do that as Diffraction Analysis because I'm not registered with the commission in Brussels. I can only do it as a  nameless individual which seems kind of pointless. So much for wanting to hear the voice of the Industry. In fact, thinking about it, the whole thing seems biased: not only are the respondents restricted, but it's excessively long, the interface is clunky and the questions are all closed. It's as if it was designed for those who have an army of lawyers and policy people whose jobs it is to write such responses. Who could that possibly be ?