Mobile VoIP could cost users their contracts

Using their mobile phone's data capability for voice over IP (VoIP) calls could cost users an arm and a leg and may even result in their contract being cancelled.

This is according to the fine print included in the usage terms and conditions for some of the mobile phone operators.

Using VoIP on MTN's network, for example, could see users having their contracts canceled and being retrospectively charged R25 for each megabyte of VoIP traffic. Vodacom doesn't specify a charge for VoIP traffic in its terms and conditions but the company did lodge a tarrif of R10 a megabyte for VoIP traffic when VoIP was legalised in 2004. Tucked away at the very bottom of MTN's terms and conditions for data offerings is a clause that reads:

"In terms of the current regulatory regime in South Africa, please note that these tariffs and the MTN GPRS, GPRS+, EDGE or 3G technologies may not be used to transfer or generate Voice over Internet Protocol (VoIP) traffic. Should it be found that VoIP traffic was carried over the MTN network using these tariffs or technologies, MTN reserves the right to cancel the agreement that you have with MTN, with immediate effect. You will also be charged retrospectively at R21.93 per Megabyte (VAT excluded) for any VoIP traffic transferred by such means."

With this ruling, if someone who had been using VoIP over MTN's 3G service at a cost of R2 per megabyte (or cheaper for bundles) for a month and had used 100 megs, they would be charged an additional R2500 as opposed to R200.

Storm's Dave Gale says "This is laughable. How are they going to do it?" He believes the reason that this is happening is that they are frightened of how this will cut into revenue stream.

As the provider of a service, it is their right to determine the terms and conditions as they see fit. What is interesting though, is their reference to the "current regulatory regime in South Africa".

Gale says that there is no such legislation and that when VoIP was made legal in February of 2004 there was nothing to specify that voice could not be run over a data connection. This was confirmed by legal experts in the field.

When Tectonic pointed this out to MTN's PR department and asked which "regulatory regime" the clause referred to, they responded: " 'In terms of a tariff plan as approved by ICASA' is the meaning and the legalisation of VoIP relates only to VANS as they were then defined."

Michael Silber, consultant at Michalson's ICT Attorneys indicated, "There is no requirement, either in the initial mobile cellular licence or the subsequent 3G spectrum allocation, that prohibits Voice over Internet Protocol, or treats it differently from any other service."

He added, "I cannot understand the basis of the assertion that the VoIP entitlement only applies to holders of VANS licences and not mobile cellular operators, when MTN itself holds two VANS licences, one in its own name and one in the name of its subsidiary MTN Network Solutions."

Silber concluded, "What does concern me is MTN's assertion that it can terminate a service if a customer uses its data connections for VoIP. I cannot find any basis for this in the licence or the 1996 Telecommunications Act. If MTN lodged a tariff for VoIP it cannot now argue that this service is unlawful."

Gale says he had raised the issue with MTN and was under the impression that changes had been made to the terms and conditions. "I contacted them in September, but I got no response after my mail was forwarded to the MTN regulatory head. They are just hoping that we will go away."

Gale describes the cell operators' tactic as a "controlled retreat" in the face of new competing technologies, adding that they are "reverting to the games that Telkom used to play".

Despite his annoyance at the situation, Gale is not particularly concerned. He sees that clause as a bluff, arguing that in many cases, such as someone using a VPN, it would be impossible for them to actually pick up if someone is using VoIP. While it might be possible to pick up if the channel is less secure, it would be highly impractical to actually monitor.

MTN said that they have not enforced this clause, but added "MTN has the technology to detect different types IP traffic (including VoIP) being transported over the MTN network and the issue of enforcement remains to be determined on a business case basis. MTN reserves its rights."

Vodacom have taken a more lenient approach, yet they reserve the right to charge clients R10 for each megabyte of VoIP traffic.

In a statement to Tectonic Vodacom said: "Vodacom's VoIP tariffs were lodged approximately two years ago when VoIP was just legalised and before the 3G service was launched. At that time Vodacom lodged a R10 per Meg rate and MTN followed with a R25 per Meg rate. However, although these are the tariffs which are lodged, Vodacom has never charged, nor is it currently charging these rates.

"Vodacom customers making voice calls over Vodacom's 3G or 3G HSDPA network are charged according to the data package they subscribe to, or the out-of-bundle data tariff. Vodacom does not block voice-over-IP calls over its network, and will formally advise customers should this position change."

Tectonic was unable to obtain any comment from ICASA.