Global menu

Our global pages

Close
Open Consultation – UK Implementation of the European Electronic Communications Code

Open Consultation – UK Implementation of the European Electronic Communications Code

  • United Kingdom
  • Telecoms - articles
  • Technology, Media and Telecoms - Telecoms

07-08-2019

Precis

The Department for Digital, Culture, Media & Sport (“DCMS”) have opened a consultation[1] which seeks stakeholder’s views on the proposed approach to the implementation of the European Electronic Communications Code Directive (the “EECC”) into UK law (the “Consultation”). The EECC was published in the Official Journal of the EU on 17 December 2018, and Member States have until 21 December 2020 to implement the provisions of the EECC into domestic law.

What?

The EECC is part of a Regulatory Fitness (“REFIT”) exercise aimed at simplifying the current regulatory structure and adapting it to address the reality that the provision of communications services do not have to be bundled with the provision of communications networks. It aims to drive incentives for investment in very high capacity networks (“VHCNs”) and services through viable competition; support the effective use of radio spectrum frequencies; sustain the security of networks and services; tackle regulatory fragmentation and provide a level playing field for all market players; and ensure a high level of consumer protection. Many of the proposed changes align with the UK Government’s new objectives for digital connectivity in the Future Telecoms Infrastructure Review[2] (“FTIR”) which was published in July 2018.

How?

The UK’s implementation of the EECC whilst we are part of the EU is mandatory, with member states having no discretion over whether to implement the provisions set out in the EECC. However, the powers and duties under the EECC take a number of forms that provide some scope as to how such requirements can be enacted under local law. 

The government also states that even though the terms of the UK’s withdrawal from the EU are ongoing, it expects the provisions of the EECC to be implemented during a post-Exit implementation period.  It is the Government’s desire to put in place the provisions of the EECC with minimal disruption, whilst ensuring their implementation meets the aims of the EECC. This is intended to be achieved in one of three ways: 1) retain the status quo and make no changes to current legislation; 2) cross reference to the EECC in existing legislation or use the language of the EECC to ensure consistency; 3) use an alternative approach for the transposition of certain provisions in a way that is tailored to UK markets. Where major changes are required to the current regulatory framework, DCMS has set out three different approaches for each respective category which stakeholders are asked for feedback on.

The Consultation focusses on articles in the EECC where there are options available to the Government as to how the EECC requirements can be implemented.  These areas are as follows:

Access and investment incentives

These provisions form a key part of the regulatory framework and govern when and how providers make available their facilities or services.  The powers proposed are designed to move the market from relying on access to incumbents infrastructure to an environment that better supports new entrants. The following EECC articles set out important changes to the network access regulatory framework:

  • Article 3 (General objectives): sets out the objectives that the relevant authorities should follow when carrying out the regulatory tasks in the EECC, adding in the promotion of deployment of VHCNs.
  • Article 22 (Geographical surveys of network deployments): sets the requirement to conduct a geographical survey of network reach.
  • Article 67 (Market analysis procedure): sets out the way in which the regulator should carry out a market analysis, which includes increasing the maximum review cycle from three to five years.
  • Article 76 (Regulatory Treatment of VHCNs): requires regulators to refrain from imposing significant market power (“SMP”) obligations on new network deployments that take place pursuant to a co-investment agreement with one or more communications providers where certain requirements are met.
  • Article 79 (Commitments procedure): sets out new powers for the regulator to make access and co-investment offers made by an SMP provider binding, which could be in lieu of SMP obligations.
  • Article 81 (Migration from legacy infrastructure): requires the regulator to ensure that migrations from copper networks subject to SMP obligations carry transparent timetables and conditions, and that consumers will continue to have access to broadband and telephony products which are at least as good as those before the migration.

Radio spectrum

The EECC aims to  harmonise measures and procedures for spectrum management whilst at the same time enabling member states to manage spectrum in-line with their own needs.  The following EECC articles set out important changes to the regulatory framework for spectrum:

  • Article 47 (Conditions for individual rights of use for radio spectrum): contains powers that enable the relevant authorities to impose and enforce ‘use it or lose it’ conditions related to individual spectrum rights designed to encourage more efficient spectrum usage.
  • Article 49 (Duration of rights): requires Member States to consider the promotion of innovation, competition and investment as well as effective and efficient use of spectrum when setting spectrum licence durations as well as introducing specific rules for the duration of licences for certain wireless broadband services.
  • Article 51 (Transfer or lease of rights of use for radio spectrum): obliges Member States to permit undertakings to transfer or lease individual rights of use to other undertakings, provided licence conditions are maintained, although there are exceptions. When combined with Article 47 the intention is that spectrum should be used more efficiently and dynamically.
  • Article 52 (Competition): obliges the National Regulatory Authority and any other competent authorities to promote effective competition when granting, amending and renewing rights of use for spectrum (including the imposition of appropriate measures to achieve this depending on the circumstances).
  • Article 54 (Coordinated timing of assignments for specific 5G bands): specifies the bands 3.4-3.8GHz and 24.25-27.5 GHz) to be made available for 5G services by 31 December 2020.
  • Article 61(4) (Powers and responsibilities for access and interconnection): requires that competent authorities have the power to impose obligations to share passive, and where necessary active, infrastructure or to conclude localised roaming access agreements, subject to strict conditions, where directly necessary for the local provision of services.

End-user rights

These provisions expand on those previously set out in the Universal Services Directive with the EECC introducing new provisions and protections to achieve a higher and more harmonised level of consumer protection across Member States.  Ofcom’s existing powers are sufficient to implement a large number of the new provisions (including Articles 98,101-106, 108, 109, 111, 112 and 115) with many already being reflected in the General Conditions of Entitlement. The Government is therefore seeking views on the implementation of those articles impacting end-user rights that may require legislative or other changes, these include:

  • Article 99 (Non-discrimination): obliges telecoms providers not to discriminate against an end user’s access to telecoms services (unless different treatment can be objectively justified on the basis of cost and risk) based on nationality, place of residence or place of establishment with the aim of removing barriers to accessing telecoms services across the EU.  
  • Article 103 (Independent Comparison Tools) : requires Members States to ensure that consumers have free access to at least one independent comparison tool that enables them to evaluate the price and quality of different broadband and phone services. It also sets out criteria that comparison tools must comply with.
  • Article 107 (Bundled offers): introduces new safeguards for consumers of bundled services and where at least one internet access service or a publicly available number-based interpersonal communications service.

Universal service obligations

Articles 84 - 92 of the EECC deal with Universal Service Obligations (“USO”). The Government proposes transposing those articles of the EECC that provide powers to:

  • introduce an affordable mobile universal service should this be required in the future;
  • require Ofcom to monitor the evolution and level of retail prices for fixed broadband and telephony, as required by Article 85, and take action in relation to the affordability of the broadband USO if necessary; and
  • require Ofcom to carry out a review of legacy universal services by 21 December 2021 and every three years thereafter in order to comply with Article 87, with Government taking the final decision on whether or not to retain such services.

Mobile and fixed termination rates

Article 75 of the EECC creates a framework to set single maximum EU-wide voice termination rates for both mobile and fixed-line calls. These maximum termination rates, which will be set by the European Commission by 31 December 2020, will be levied on any provider of mobile or fixed voice termination services in any Member State.  Intervention has been considered necessary due to the disparities observed by the European Commission in the approaches in Member States to the regulation of termination rates by National Regulatory Authorities.

Network security and resilience

The Government is currently reviewing the legislative framework for the security and resilience of telecoms networks and services as part of the Telecoms Supply Chain Review. Although the EECC brings in some changes to strengthen the current network security provisions, the Government does not consider it  appropriate to consult on them at this time. The Telecoms Supply Chain Review[3], which is due to finish in Summer 2019, will inform the transposition of these provisions.

Next steps

We advise that all interested parties read the consultation paper and pay close attention to the 31 questions set out in Annex A. These are the points that DCMS is requesting specific input on, although more general comments are welcomed. Stakeholders are required to provide responses to the Consultation by 10 September 2019.The Department will publish an official Government response once all views have been collated, which will inform the UK legislation implementing the EECC.



[1]                 Implementing the European Electronic Communications Code Consultation

[2]                 Future Telecoms Infrastructure Review

[3]                 Telecoms Supply Chain Review

Rosie Wallace

For more information contact

< Go back

Print Friendly and PDF
Subscribe to e-briefings