Covid-19 and Brexit force DCMS to deprioritise rule changes in push to deliver telecoms directive

The Department for Digital, Culture, Media and Sport (DCMS) has announced that it will deprioritise the implementation of aspects of the European Electronic Communications Code (EECC) ahead of its 21 December 2020 implementation deadline.

DCMS' publication of the government's response to its July 2019 consultation confirms its approach to transposing Directive (EU) 2018/1972 and establishing the EECC into UK law. This included the deprioritisation of rules applying to number-independent interpersonal communications services (NI-ICS), known as over-the-top services.

The response, published on 22 July 2020, sets out what, if any, changes to primary UK legislation are required to implement the EECC into UK law (including necessary changes to the General Conditions that the Ofcom consultations relate to).

The government has confirmed that a small number of EECC requirements will not be implemented into UK law by the date that Members States are required to transpose the directive.

In a surprise turn partly because of the Covid-19 pandemic, DCMS announced that, by deprioritising some of the EECC requirements, it would not fully comply with the EECC by the 21 December 2020 implementation deadline.

The department stated that, given the 10-day gap between the EECC implementation deadline and the end of the Brexit transition period, it had deprioritised some requirements as a necessity to ensure that due consideration is given to the implementation (which has not been possible due to the Covid-19 pandemic) or because of their limited applicability after the Brexit transition period ends.

Deprioritised services

The EECC had broadened the scope of communications service providers, who are subject to the telecoms general authorisation regime, by introducing a new category of number-independent services. NI-ICS do not connect to the traditional phone numbering system and these over-the-top services include voice-over-internet phone, messaging and email. The category for over-the-top service providers was widely seen as a move by the EECC to level the playing field with traditional telco operators.

The government plans to deprioritise all EECC obligations on NI-ICS, which were limited to the services having appropriate security measures in place and, if directed by the regulator following a review process, to ensure that the service would interoperate with other NI-ICS. However, NI-ICS will still be subject to the general authorisation regime, so Ofcom will be able to exercise its information-gathering powers.

As regulator, Ofcom is required to assess and review the communications market constantly and to report on its findings through publishing reports. Ofcom is also required to aim to remain at the forefront of technological understanding. NI-ICS providers, along with all other '"traditional" electronic communications service and network providers, will continue to be under the scrutiny of Ofcom, despite the government's view that it is not a priority to impose further obligations under present circumstances.

Others areas that are deprioritised include:

• Awarding the regulator discretionary designation powers and associated penalties, relying instead on the remedies available under the Competition Act 1998 to tackle any anti-competitive behaviour (Article 22).
• The requirement for communications service providers not to discriminate against end users’ access to telecoms on the basis of their nationality, as there will only be 10 days until the Brexit transition period expires (Article 99).
• Extending the broadband universal services obligation to further services (Article 92).
• Provisions relating to Ofcom’s independence and transparency as a regulatory authority. The government believes these principles are appropriately established in domestic law (Articles 6, 7 & 8).
• Giving a “double-lock veto” to the European Commission to require Ofcom to withdraw measures in the UK telecoms market (Article 33)
• Requiring Ofcom to assess transnational markets in collaboration with European equivalents without direction from the Commission (Article 65)
• Giving the Commission powers to set EU-wide call-termination rate charges. As the adjustment period is over 12 months, it is not appropriate to transpose (Article 75)

EECC implementation

As well as areas for deprioritisation, the government has set out the following areas where updates to UK law will be required to implement the EECC:

• Network forecasting. Ofcom will have new powers to gather information on operators’ planned network rollout. The regulator will also be required to publish non-confidential data about areas where no rollout is planned by any operators to help inform industry investment and public investment in poorly connected areas.
• Promoting cooperation and competition in hard to reach places. In areas where it is costly or difficult to install new networks, such as urban blocks of flats and rural locations, Ofcom will have the power to impose obligations on operators already present to offer network access or to share equipment such as mobile masts with other operators.
• Easier switching for consumers. Currently, when switching broadband communications service providers, consumers need to liaise with their old and their new communications service provider and juggle the relevant old service's end dates and the start dates for new services. Under these changes, they will be able to contact their new communications service provider, who will lead and coordinate the switching process so it is as smooth as possible and occurs with minimal loss of service.
• Better regulation of bundles. Consumers on bundled contracts, including mobile and broadband contracts, but also services such as video and music streaming, will be able to switch communications service providers more easily. This means they will avoid being locked into bundled contracts if, for example, communications service providers make changes to their contracts, or something goes wrong with just one service in the bundle.

The consumer protection measures will be implemented by Ofcom through updates to the General Conditions . For the remaining provisions, the government has confirmed that, where additional legislation is required to transpose the relevant requirements into UK, it intends to lay a Statutory Instrument in autumn 2020 and use this to correct any deficiencies arising from the transposition.

Next steps

The Covid-19 pandemic triggered a surge in the use of over-the-top communications services such as Zoom. With these services coming within scope of Ofcom's information gathering powers, we may see a divergence of approach to regulation in the UK, as Ofcom considers what aspects of the existing telecoms framework should apply to them in the future.

As there are no notification or registration requirements in the UK, any over-the-top communications services that will be classified as an NI-ICS will not need to do anything right now.

However, they should remain alert for any information requests from Ofcom, as a failure to respond is an offence with financial penalties. We may also see updates in 2021 that start extending some of the General Conditions to these services, when the UK will no longer be bound by the maximum harmonisation requirements for end-user rights under the EECC.