Morocco's ban on VoIP calls: Was it legal?

In early January Morocco moved to limit access to select voice-over-internet-protocol (VoIP) services such as Viber, Skype, WhatsApp and Facebook. In a press release published on 07 January 2016, the Moroccan telecom regulator ANRT (“Agence nationale de Réglementation des Télécommunications”) justified this ban by stating: “Only operators of public telecommunications networks can carry telephone traffic to the final customer in conditions fixed by the licenses’ specifications they abide by.”

Simply said, the ANRT considers services providing VoIP, a methodology for the delivery of voice communications over the internet, to be providing telephone services which require them to have a telecommunication license.

ANRT referred to a decision of its general manager dated 06 April 2004, whereby it stated that VoIP calls require a telecommunication license. This decision was referring to article 2 of Law No. 24-96. The said article requires a license for (i) operating any telecommunication public network and for (ii) making available telephone services to the public.

In the same press release ANRT mentions, in the course of a sentence, “the shortfall in terms of revenue for the national telecommunication market resulting from the use of free telephone over IP services.” Commentators are challenging ANRT’s decision legal background from two angles:

1. Are VoIP calls classic telephone calls?

The steps and principals involved in originating VoIP telephone calls are similar to traditional digital telephony and involve signaling, channel setup, digitisation of the analog voice signals, and encoding. Instead of being transmitted over a circuit-switched network, however, the digital information is packetised, and transmission occurs as IP packets over a packet-switched network.

Based on the above, some commentators argue that VoIP calls are only transmitting voice over the internet as any other data and therefore this would not be telephone services under the classic definition of it. Both positions are defendable. Law No. 24-96 was published back on 1997 at a time when the internet was still at its early stages and telephone calls were still widely based on the classic technology. Using the definition of classic telephone calls and applying it to VoIP calls may not be as simple as ANRT claims. Nevertheless, definition of telephone services under Law No. 24-96 is very broad. It includes commercial exploitation involving voice transport in real time through commuted public network allowing any fixed or mobile user to use connected equipment to an end point to communicate with another fixed or mobile user using connected equipment to another end point.

On, the other hand, definitions of VoIP consider it as a technology that allows you to make voice calls using a broadband internet connection instead of a regular (or analog) phone line. The core difference between conventional lines and IP lines revolves around the use of the circuit switches. IP networks have neither a beginning nor an end point. Rather, they incorporate a continuous flow of data. As a result, the geographical location of the sender and receiver is irrelevant. Instead of hard circuits, bandwidths are utilised to carry digital signals to the desired destination.

Strictly speaking, definition of telephone services under Law No. 24-96 seems not to apply to VoIP services as far as the technical part of it is concerned.

2. What about free competition?

ANRT’s reference to “shortfall in terms of revenue for the national telecommunication market resulting from the use of free telephone over IP services” has been interpreted as an infringement to articles 6 and 7 of Law No. 104-12 governing free competition. According to said articles, actions, agreements, contracts and express or tacit coalitions are prohibited when they intend to:

• Limit access to the market or free competition.
• Be an obstacle to the setting of prices through free competition, artificially favoring increase or decrease thereof.
• Limit or control production, outlets, investments or technical progress. 
• Divide the market, the public bids or the sources of supply.

Moroccan legislation prohibits the abusive exploitation, when this limits or restricts free competition, by a company or group of companies of: 

• A dominant position in the internal market or in a substantial part of it.
• A situation of economic dependence of a client or a supplier that lacks other alternatives.

Local commentators consider that ANRT is a regulator and not a law maker and cannot take decisions aiming to protect operators or markets against others. Again this is questionable. While ANRT cannot limit free competition, it is empowered to grant licenses and control the telecommunications market to protect license holders from operators who would enter the market without any license.

Any risk of sanctions?

Article 83 of Law No. 24-96 states that establishing a telecommunications network without a license involves a risk of imprisonment between one month and two years and a fine ranging between MAD 10,000 and MAD 200,00.

This sanction can clearly be applied against any operator providing telecommunications services without license but commentators wonder if this would also apply to users who use VPN (virtual private network) to access VoIP services and over jump ANRT’s restrictions. Again, Law No. 24-96 was drafted on mid-nineties and was not intended at all to govern services over the internet. Using it to sanction VoIP services or its users would be questionable.

What next?

VoIP services in Morocco seem to be in a grey area from a legal point of view. Once again technology seems to have outdistanced laws. Legal claims against ANRT decisions are more than probable and there are reports of legal claims already started against ANRT decision before Moroccan courts. Case law may bring new developments but the matter is highly technical and Moroccan judges may need external expertise to rule. The other possibility is for lawmakers to update Law No. 24-96 and include specific provisions governing internet services, the lack of which is bringing the current debate.

Looking ahead, bigger challenges are involved: Will the sacrosanct principle of internet neutrality resist to local regulators? What about the government’s desire to have a kind of control over the internet for security reasons?