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UK faces major telecoms regulation overhaul courtesy of the European Electronic Communications Code

Published on 15 January 2021

What does the European Electronic Communications Code (EU) 2018/1972 (EECC) mean for the UK’s communication services?

The key takeaway

The EECC (formally adopted in December 2018) is set to be implemented by each EU Member State by 21 December 2020. This will overhaul the current communications regulatory framework in order to further protect consumers and ensure that they are the priority for providers of communications services. New sets of obligations will be imposed on different categories of service provider (see flowchart below).

The background

The European Commission has released guidelines on the interpretation of some aspects of the AVMSD, which are an interesting insight on how the European Commission evaluates the scope and application of the AVMS Directive. One of its core purposes is to regulate illegal and harmful online content and it extends these rules to cover certain social media platforms, if the provision of programmes and user-generated videos constitutes an “essential functionality” of these services. The guidelines provide a list of relevant indicators that can be used to assess the essential character of the audiovisual functionality of a platform.

The background

Previously the Communications Act 2003 was the main source of regulation for communications providers in the UK. Communications provider encompasses fixed line owners and operators (such as BT and Virgin), mobile network operators (such as Vodafone and O2), Internet Service Providers (such as Sky), and VOIP operators (such as Skype) amongst others. The 2003 Directives which the Communications Act 2003 derived from have been updated and replaced by the EECC, which is designed to update and harmonise the existing framework regulating electronic communications services across the EEA.

The development

The EECC will result in a number of changes to existing communications regulation in the UK (including to the Communications Act 2003 and Ofcom’s General Conditions). Ofcom and the Government have been in discussions in order to reach a collaborative approach towards implementation of the EECC. In July, the Department for Digital, Culture, Media & Sport (DCMS) published its responses to the consultation on implementing the EECC in the UK and will ensure the EECC is implemented (almost in full) by the transposition date. Examples of how the DCMS intends to implement the EECC include providing Ofcom with the ability to impose pro-investment regulations and promote competition in mobile markets including by the promotion of 5G and efficient use of the full radio spectrum.

All traditional Electronic Communications Networks and Services (ECNs and ECSs) including mobile, SMS, MMS, broadcasting transmission services, machine to machine communications and VoIP services will come within the requirements of the EECC. In addition, the EECC now also extends the scope of the ECS to cover Interpersonal Communications Services (ICSs) for the first time, which includes over the top providers such as WhatsApp, Facebook Messenger and Skype, unless the ICSs are solely supplementary to a non-communications service. Over the top providers such as Google Duo will be subject to additional consumer protection measures such as (i) being more transparent, (ii) being required to disclose more information, and (iii) including certain additional provisions in contracts. Regulation requirements in respect of mobile and fixed line providers will tighten with respect of (i) bundle offers, (ii) sales of locked devices being prohibited and (iii) switching between services being made easier.

While ECSs and ICSs will be required to comply with additional measures under the EECC, information society services, e-commerce platforms and those who exercise editorial control over broadcasts and online content will not be covered by the EECC.

Ofcom has confirmed that the new customer protections will be implemented in full, proposing to prohibit “locked” devices being sold by mobile providers, make it easier to switch broadband providers, requiring communications providers to provide customers with more information and to extend the right to exit their contracts. New obligations to ensure disabled customers are provided with communications which meet their needs (eg braille) will also be implemented.

Why is it important?

The EECC implementation date of 21 December 2020 falls within the Brexit transition period (ending on 31 December 2020). The UK therefore remains obliged to implement any UK directives into domestic law until that date. This means that those caught by the EECC need to get to grips quickly with what the new framework really means for them, including how they are going to implement any changes.

Any practical tips?

Organisations seeking to update their compliance measures under the EECC should prioritise number-dependent over the top provider services (such as standard mobile services) as opposed to number-independent services (such as WhatsApp, Zoom and Skype) as it is likely that number-independent services will be de-prioritised and implemented at a later date. However, organisations should not ignore the latter entirely, as it is likely that from 21 December 2020 appropriate security measures will need to be in place and, if required, the number-independent services able to interoperate.

It would also be wise to get familiar with Ofcom’s General Conditions of Entitlement, as all ECS providers and ICS providers will be required to comply with certain provisions. Ofcom have made this slightly less time pressured by allowing communications providers 12 months (from 7 May 2020) to implement any changes, regardless of the transposition date.

Finally, don’t forget the breach notification obligations which the EECC brings into force, including by virtue of its extension of the ePrivacy Directive. See our Autumn 2020 Snapshot on the challenges of the potential breach notification nightmare brought into play by the EECC.

Winter 2020