YouTube sucks on French ISP Free, and French regulators want to know why

The French telecoms regulator ARCEP is investigating whether or not Google’s (s goog) YouTube service is being inappropriately and intentionally blocked by popular French ISP Free, and will make a decision early this year. ARCEP is looking into the financial and technical conditions of traffic delivery between ISPs and online content providers, intending to discover whether either side is degrading infrastructure quality.

As part of its investigation, the regulator is also probing three other unnamed companies. The perception is that ISPs in France are either under-investing in infrastructure or violating the spirit of network neutrality, the idea that ISPs should not discriminate on traffic traveling over their pipes. Yet, in France, it seems that at least some in the government are willing to make Google pay for the ability to guarantee that ISP customers can receive its bits, turning the internet into Gulliver in the land of the Lilliputians, with ISPs and governments tying it down. The question is, will what happens in France happen elsewhere?

The ARCEP investigation and user complaints

Early this year, communications regulator ARCEP will rule on an investigation it opened on November 22 following complaints that video streaming services including YouTube (s goog) are often too slow to watch. Now three French senators are also calling on the country’s digital economy minister to take action.

ARCEP stepped up when a survey of over 16,000 ISP customers by French consumer group UFC Que Choisir found 83 percent of Free customers, 47 percent of Orange customers and 46 percent of SFR customers were unable to use YouTube properly.

Since the investigation began, many users have reportedly noted an improvement in connection quality, but connections remain patchy.

1098164_downloading_barAnd this issue is not limited to Google. “The quality of connection is inadequate in almost all operators,” said UFC Que Choisir’s survey, which found that France’s native Dailymotion, ironically, is slowest to access through France Telecom’s own Orange ISP, which owns almost half of the YouTube rival. And 25 percent of consumers reported slow-downs while watching broadcaster TF1’s MyTF1 catchup service.

Is it under-investment or a desire to make content companies pay?

UFC Que Choisir says these symptoms may be caused by under-investment in infrastructure as well as commercial tensions between ISPs, which deliver web services to the end user but which don’t pay for the infrastructure. It has called on the government to define quality-of-access rules, in part by allowing the competition regulator ARCEP to build a quality-of-service observatory. Similarly, in the U.S., the Federal Communications Commission is also trying to figure out how to measure the quality of a broadband connection beyond just looking at speeds.

Inter-company tensions do appear to be at play. A case before another public agency — France’s competition regulator, the Autorité De La Concurrence — in September illustrates how ISPs eager for revenue from web content companies can hold the user experience hostage.

Cogent, which handles YouTube’s peering interconnections, had complained to the competition authority that Orange had refused its connections, wanting more money to add ports to connect Cogent traffic to its networks. Much of the interconnections between large ISPs, CDNs and web content companies are negotiated by private deals, so it’s rare to see the government get involved, or even to hear much about them publicly. In the U.S., when Level 3 and Comcast became embroiled in a public peering fight after Level 3 started sending Netflix traffic over its connections with Comcast, the FCC refused to get involved, and both parties settled the disagreement.

But in this case, the competition regulator said one ISP was within its rights to charge more money from services hoping to reach its subscribers. This so-called double-sided business model has been sought by ISPs who argue that companies such as Google are freeloaders making huge profits off the pipes of owned by the ISPs. In contract, Google and other content companies argue that their services are the reason customers upgrade to higher speeds and continue paying ISPs money.

And in France the ISP argument has gained at least one supporter in the Autorité De La Concurrence. The authority says France Telecom is offering interconnection prices significantly below market value, and it has accepted the telco’s undertakings to ensure transparency.

French policymakers generally are generally in the mood to extract more money from Google. They have already set such wheels in motion around taxation and copyright fees. Now infrastructure could be the next arena. But its unclear how far France will go.

It’s one thing to try to ensure that consumers have an acceptable connection to support online video, through implementing some kind of standards. It’s another to get between participants in peering disputes, and to possibly start setting rates.

The U.S. fight is bigger than France’s

handshake_buddawiggiBut such fights are becoming more common as the stakes over the internet and web video get higher. ISPs are worried about the cost of delivering video traffic over their networks, while also losing out on the ability to charge users for pay TV packages that significantly boost their revenue. Meanwhile, consumers are demanding more video online because they can choose what to watch, when they want to watch it, on any device.

The French competition authority’s earlier investigation referred only to two individual companies at loggerheads in a specific peering fight. But the new inquiry by the communications regulator is much wider, looking at industry-wide practices around infrastructure and interconnection. And it comes following consumer outcry — identified in UFC Que Choisir’s survey — to which politicians may be keen to respond.

The outcome will be important because Google is already facing having to pay to re-use news content in some parts of Europe through both commercial agreements and possible new legislation that suggest excerpting is chargeable. That could set new precedents for the online content economy.

The French broadband outcome will be important because it will set up a precedent for other telecom regulators who are struggling with similar issues. Creating standards to ensure that customers have a quality online video experience is no simple task and may well require investment by ISPs, especially those on older technologies or oversubscribed networks.

As for the peering issues, if the government decides to step into the fray there, it could be setting the internet up for regulations that put governments in the role of determining who can connect to whom and how much they can charge. The OECD recently made a convincing argument that such regulations and government involvement would hurt the web and the economic development of companies dependent on the web. So what France does here might have influence far beyond its borders.