It is a paradox of Brexit that whilst the UK has left the European Union, for many years the the UK championed policy ideas that underpin the current EU telecoms framework: from the original liberalisation of European telecoms markets to the adoption of a philosophy that good consumer outcomes were, where possible, delivered by a competitive market.
Whilst the UK and EU started from a position of regulatory alignment, the UK has already started to diverge materially from the EU:
- First, merely by virtue of leaving the EU and becoming a ‘third country’ the regulatory treatment in UK law (even ‘retained EU law‘) and EU law changed in relation to cross-border issues including roaming.
- Second, the UK has already made a deliberate policy choice not to implement in full the new European telecoms regulatory framework (the European Electronic Communications Code or EECC) which has implications for both telecoms regulation and as a result of the link with the ePrivacy rules and data protection.
- Third, as the UK will no longer adopt new EU telecoms law, (and will presumably seek to implement its own policy choices), divergence is only likely to increase over time. Whilst the UK remains constrained by its Trade and Co-operation Agreement with the EU and its telecoms commitment at the WTO, these exist at such a high-level of generality that the UK has scope to make materially different policy choices from the EU.
Each of these three areas is explained further below.
Immediate issues: UK as a ‘Third Country’
After Brexit, as a matter of law:
- UK mobile customers (when roaming to the EU, EEA and EFTA) and EU, EEA and EFTA mobile customers (when roaming to the UK) are not entitled to ‘Roam like at home‘ (i.e. be subject to no roaming surcharges; and
- wholesale roaming charges levied between operators in these circumstances are no longer regulated.
Whilst no operator changed their roaming tariffs immediately after Brexit, they are now free to do so.
The Roaming Regulation (technically Regulation (EU) 531/2012 as updated by Regulation (EU) 2015/2120 and Regulation (EU) 2017/920 – informally consolidated here) applies within the EU, EEA and EFTA countries (“Applicable Countries”) in respect of mobile customers from one Applicable Country roaming to another Applicable Country, who are charged (subject to fair use) no more when roaming than when at home – ‘Roam like at home’.
The Roaming Regulation achieves the ‘Roam like at home’ customer experience through a combination of retail price control (no surcharge for roaming from one Applicable Country to another Applicable Country) and wholesale prices caps. Further, the Roaming Regulation requires various price transparency measures (often implemented via free SMS notifications) when customers roam to countries other than Applicable Countries. The EU Commission has proposed an updated Roaming Regulation to replace the current rules as they expire.
In the EU Brexit meant that the UK ceased to be an Applicable Country under the Roaming Regulation, instead becoming a ‘third country’. Any updates to the Roaming Regulation will not take effect in the UK.
In the UK, the Roaming Regulation became part of retained EU Law, subject to amendments in The Mobile Roaming (EU Exit) Regulations 2019 (SI 2019/587), to retain only the following obligations on UK mobile networks when their customers roam outside the UK:
- price transparency: customer notification when 80% and 100% of data allowances reached
- a £45 financial limit on data charges without explicit opt-in
- requirement to inform customers how to avoid roaming in border region (i.e with Eire)
Choosing to diverge: partial EECC implementation
21 December 2020 was the deadline for European Member states to implement the European Electronic Communications Code (Regulation (EU) 2018/1971) (“EECC“). As this was before the end of the UK’s transition period, in theory the UK was obliged to fully implement the EECC into UK law. However as explained in this blog post, the UK did not fully implement the EECC into UK law.
“…the government’s approach to implementation of the European Electronic Communications Code aligns with the following principles:
– meeting the minimum requirements of the Directive
– minimising additional costs to business
– ensuring updates to the UK regulatory framework contribute to the government’sdigital connectivity ambitions where there is discretion and justification to do so…”22 July 2020 – Government response to the public consultation on implementing the EECC
Each divergence is explained in the following sections:
Exclusion of OTT from telecoms regulation
The UK chose to not update its definition of ‘electronic communications services‘ to include over the top (or “OTT“) providers.
Article 2 of the EECC updates the prior definition (for the EU) to include ‘number independent interpersonal services’ (= ‘an interpersonal communications service which does not connect with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, or which does not enable communication with a number or numbers in national or international numbering plans‘) within the definition.
The UK government’s overt explanation for choosing to not implement this change is less than convincing – it seems to say that this is all very complicated, so they will gather more information and think about it later (aka ‘dog ate my homework’):
“The government’s approach is to extend Ofcom’s information gathering powers to NIICS to help build a better understanding of the market and inform future policy. The government is not seeking to extend an interoperability power to cover these services through transposition of the Directive. This power is exercised by the EU where a threat to end-to-end connectivity is found in at least three member states and it is unlikely that the provision would be applicable during the 10 days between the transposition deadline and the end of the transition period.
The potentially wide-ranging and complex nature of the NIICS requires work involving several government departments, engagement across the communications industry and detailed analysis and policy work. As such, the government has not treated the application of the narrow band of consumer rights and light-touch security provisions to NIICS as critical for the 21 December 2020 deadline.”22 July 2020 – Government response to the public consultation on implementing the EECC
On the other hand, this divergence makes more sense in the context of the UK seeking a trade deal with the US, as the EECC’s extension of regulation to OTTs was widely seen as the EU taking aim at US technology companies.
The effect of this divergence in the fundamental scope of regulation is profound and may have unpredictable consequences.
By way of example (and not discussed in the UK’s implementation consultation) this means that the telecoms specific data processing obligations in the UK’s ePrivacy rules do not apply to OTT services, but do apply to OTT services in the EU.
No enhanced regulatory independence for Ofcom
Articles 6, 7 and 8 of the EECC update the institutional rules applicable to national regulatory authorities. Article 8 provides for NRAs to be politically independent (“national regulatory authorities shall act independently and objectively, […], shall operate in a transparent and accountable manner in accordance with Union law, and shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to them under national law implementing Union law.“)
The UK government explains that in their view no change was required in UK law:
“The government believes that these principles are appropriately established in domestic law and that limited introductions, including a three year minimum term for the Chair of Ofcom, will not have a practical impact during the transition period. In light of the COVID-19 circumstances, no further transposition of these articles is to be prioritised for the 21 December 2020 deadline.”22 July 2020 – Government response to the public consultation on implementing the EECC
However, it is not clear that the principles in Article 8(1) EECC (extract above) are established in UK domestic law – particularly in light of the new duty imposed on Ofcom by s98 of the Digital Economy Act 2017 to have regard to strategic priorities set by Government, and controversy regarding the apparent politicisation of appointments to Ofcom board.
Withdrawal from harmonising processes and bodies
As the UK is no longer a member state, it has withdrawn from EU harmonising processes and bodies, including:
- Ofcom is no longer a member of BEREC and no longer needs to notify the EU Commission before it takes regulatory action such as imposing remedies following a market reviews
- Ofcom does not need to take the utmost account of the Commission, BEREC or the radio spectrum policy group (RSPG) guidelines, opinions, recommendations, best practices and methodologies
- Ofcom is not required to co-operate with EU NRAs and they are not obliged to co-operate with Ofcom
- Ofcom (and the UK) is not part of the RSPG
Withdrawal from voice termination rate co-ordinated regulation
On 18 December 2020, the EU Commission adopted a regulation setting maximum mobile and fixed voice termination rates for the EU:
- 0.2 eurocents per min by 2024 (c. 0.17 ppm) for mobile voice termination
- 0.07 eurocents per min by 2022 (c.0.06 ppm) for fixed voice termination
- 0.379 ppm in 2021/22 for mobile voice termination falling to 0.393 ppm by 2025; and
- 0.0292 ppm (indexed linked to inflation, so flat in real terms) for fixed voice termination
However, to the extent that EU termination rates exceed the UK termination rates, operators are able to set UK termination rates for calls originating from the EU on a reciprocal basis (i.e. at the higher EU termination rate).
Delay in implementing some consumer protection aspects of EECC
As discussed in more detail here, the UK Government decided to delay implementing certain consumer protection aspects of the EECC. On 17 December 2020, Ofcom published a statement explaining its approach and the delays:
- new rules concerning contract information and right to exit were delayed until June 2022
- new rules concerning switching and porting were delayed until December 2022
No co-operation on cross-border market issues
Ofcom is no longer required to co-operate with EU NRAs on cross-border market issues.
Medium to long term issues
After Brexit, whilst the substantive high level net neutrality principles remain the same as the EU, the UK is no longer bound to follow BEREC guidelines or EU court decisions relating to net neutrality. As the law is likely to be in large part defined by ongoing court decisions and updated BEREC guidance, over time this is likely to lead to a divergence between how net neutrality is interpreted and enforced in the EU and the UK.
In the UK, the EU Open Internet Regulation (Regulation (EU) 2015/2120) became part of retained EU law subject to amendments in The Open Internet Access (Amendment etc) (EU Exit) Regulations 2018 (SI 2018/1243) – in large part further implemented through revisions to the Communications Act 2003 and General Conditions of Entitlement. Amendments on Brexit made it clear that parental filters were compatible with UK net neutrality rules.
UK non-adoption of new EU Law
Having left the EU, the UK will not implement new EU law or update retained EU law. Over time, this will lead to increased divergence between UK and EU law.
Trade and Co-operation Agreement provisions
On 24 December 2020, the UK and EU agreed a Trade and Co-operation Agreement.
Part 2 (Trade, Transport, Fisheries and Other Arrangements), Heading 1 (Trade), Title II (Trade in Services and Investment), Chapter 5 (Regulatory Framework), Section 4 (Telecommunications Services) of the Trade and Co-operation Agreement sets out the agreement between the UK and EU in relation to telecommunications services. The UK government’s view of what was agreed is:
“The provisions on telecommunications regulation lock in existing levels of liberalisation in UK and EU markets, confirming both sides’ leadership in this area and our commitment to openness. The Agreement includes standard provisions on authorisations, access to and use of telecoms networks, interconnection, fair and transparent regulation and the allocation of scarce resources. The provision on authorisation is the most liberalised authorisation regime agreed in any FTA. It ensures that businesses from either Party will not have to wait for prior authorisation before they begin to deliver services, giving our operators access to EU telecoms markets which is without precedent in an FTA.
The Agreement contains measures to encourage cooperation on the promotion of fair and transparent rates for international mobile roaming. It also covers obligations on net neutrality, which fulfils the UK’s dual aims of securing commitments towards an open internet and protecting the safety of users online.”UK-EU Trade and Cooperation Agreement summary
On 3 December 2018, the UK submitted its services schedule of commitment to the WTO for certification. The UK explains that it has retained the scope and substance of the EU prior commitment on telecoms.
Other trade deals: US, CPTPP, etc
Whilst the UK has ‘rolled over’ some existing EU trade deals to bi-lateral trade deals it has not (as at April 2021) yet entered into material new trade deals. The UK Government is negotiating a US-UK trade deal as a priority and (notwithstanding geography) has also submitted an application to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.
These (or other material new trade deals) could have an impact on UK telecoms law and regulation.