Obligated to implement the new EU telecoms rules as part of the Brexit transitional arrangement, the UK Government recently published legislation transposing the requirements of the European Electronic Communications Code (EECC).
The Government's approach was foreshadowed by its statement on the UK implementation published in July and the draft Statutory Instrument (SI).
For background, the EECC is designed to put in place one of the essential building blocks of the EU's Digital Single Market and marks a significant revision of the current EU telecommunications regulatory framework, dating from 2009. At the heart of the Code is the desire to promote connectivity in fibre deployment as well as 5G. Accordingly, the Code has measures to promote greater investment in very high capacity networks. This is in line with the EU's ambitions to achieve advanced connectivity (which chime with the UK's ambitions), and one of the Code's core objectives reflects this ambition.
Another critical plank of the EECC is the intention to level the playing field between traditional and over-the-top (OTT) communication services. Consequently, the Code seeks to extend the telecoms rules to OTT communication applications for the first time.
Of particular relevance to the UK's transposition is therefore its approach to the future regulation of OTT services, such as messaging services and email known as number-independent interpersonal communication services (NI-ICS). In line with the Government's statement in July to deprioritise certain provisions governing NI-ICS (in particular, the end-user provisions, security and interconnection/interoperability), the UK legislation does not fully transpose the Code's requirements as applicable to NI-ICS.
The Government has not revised the UK definition of electronic communication services (ECS) in line with the definition in the new Code. As a result, the draft Statutory Instrument revises the definition of ECS to include only Internet Access Services, number-based interpersonal communications services and any other services involving the conveyance of signals (such as services designed to support machine-to-machine applications). It also does not include the broader category of interpersonal communications services, which would include both number-based and number-independent ICS.
Instead, the UK Government has sought to expressly apply certain provisions directly to NI-ICS rather than via the general amended definition of electronic communications service.
The narrow scope of the new electronic communications services definition to exclude NI-ICS clearly has wider implications for other legislation that refers out to the "ECS" definition in the Communications Act 2003 (as amended), such as the ePrivacy rules in the Privacy and Electronic Communications Regulations ("PECR"). The latter directly refers out to the ECS definition in the Communications Act. By implication, this could suggest that unless the PECR rules are changed to expressly include NI-ICS, such services will not be subject to the telco specific PECR rules (e.g. on traffic data).
In the UK, this legislation is only part of the story when it comes to the implementation of the Code, and it is important to also take into account Ofcom's General Conditions where the more granular requirements outlined in the EECC are enforced. The Ofcom rules set out the telecoms obligations as applicable to the various communication providers. Ofcom published its final statement on 27 October 2020 setting out the end-user requirements and has excluded NI-ICS from its scope. There is a range of strengthened consumer measures with differing implementation dates, including:
- Banning mobile providers from selling locked mobile devices – December 2021;
- Extended rules on accessibility for disabled customers – December 2021;
- New rules for bundles which includes other services or equipment sold with a communication service – December 2021;
- Better contract information and stronger termination rights – June 2022;
- Improved switching processes for broadband - December 2022.
The UK implementing legislation, which makes changes to the Communications Act 2003 and Wireless Telegraphy Act 2006 (governing spectrum), is due to enter into force on 21 December 2020 (some provisions will also be refined at the end of the Brexit transition period). Ofcom's new rules will enter into force at the same time, albeit with differing transition periods to give time to implement the requirements, particularly in the Covid-19 environment.
Overall, the UK's position on the regulation of OTT services may come as a surprise to some, but perhaps, given Brexit, it is a sign of things to come. We may see a further divergence from the EU in the future, and in this regard data protection and adequacy, in particular, are further areas to keep a close eye on.
For further information contact Matthew Buckwell
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