Communications

Telecoms industry boom as EU and UK regulatory codes lag behind

5G and a post-Covid-19 need for fast internet and telecoms has led to a 2020 boom in the telecoms industry. But European digital ambitions for fast connectivity are coupled with the objectives of promoting competition, the internal market and consumer protection. In this respect, two developments to help achieve these ambitions – the European Electronic Communications Code (EECC) and UK Electronic Communications Code – are in need of acceleration. Not to be confused with each other, the codes cover different aspects of the telecoms regulatory framework. The EECC consolidates all four European telecommunications directives, overhauling the existing framework and bringing, in some areas, significant regulatory change. By doing so, the EU expands the three primary objectives announced for existing telecoms regulation: promoting competition, the internal market and consumer protection. The UK Code, implemented by the Digital Economy Act 2017, governs the installation and maintenance of telecommunications infrastructure in the UK with the goal of supporting the cost effective and efficient roll out of digital communications infrastructure which is essential to the UK meeting its connectivity ambitions.

European Electronic Communications Code

Due to be implemented into Member States by 21 December 2020, the EECC is a significant issue for telecoms operators across Europe. Implemented as a directive, each Member State must up-date its own laws to reflect the EECC's requirements – and, for those relating to end-user protections, this will need to be done on a fully harmonised basis. This means that each Member State is not permitted to deviate from the EECC requirements in order to create a unified approach to electronic communications services across Europe. The Covid-19 pandemic has delayed the legislative process across Europe, however, with the UK only announcing its approach to end-user protections at the end of October and setting staggered implementation over 12-24 months for the new rules. For other countries it is not clear that the implementation deadline will be achieved at all; for example, in Germany comments on the latest draft of amendments to the Telecommunications Act were only submitted by 20 November. The Federal government still has to review and reach agreement on the outstanding points.

Italy's parliament is still discussing the draft of the European delegation bill, which is one of the main legislative measures needed for its government to implement the EECC in the Italian frame-work. Once the European delegation bill is approved, the Italian government has a further three months within which to issue an implementing legislative decree – making it unlikely that the 21 December 2020 deadline will be met. As there are no harmonised timeframes for national implementation of the rules once they are law in each Member State, a differing approach across Europe will likely continue for the next couple of years despite the "full harmonisation" requirements set out in the EECC. (See here for further details on national implementation of the EECC and its requirements.)

UK Electronic Communications Code

The much-anticipated new UK Code was intended to put the telecommunications sector "on a similar regime to utilities like electricity and water" and to facilitate the "the rapid and deep roll out of digital communications technologies for the foreseeable future" across the UK, according to the Department for Culture, Media and Sport. However, it has disappointed, with parts of the Code lacking clarity and certainty for operators. This has significantly stalled its objective: to facilitate the cost-effective roll-out of digital communications infrastructure. By comparison, other jurisdictions, such as the US and Singapore, have successfully implemented supportive legal frameworks, which have driven the roll-out of 5G networks. The defining feature in the regulatory frameworks of these jurisdictions is a governing body that is responsive to the concerns and requirements of operators. For example, Singapore's Infocomm Media Development Authority works closely with operators to ensure there are suitable site locations for their infrastructure. This has been achieved by requiring landowners to provide designated "mobile installation spaces" on their properties. Significant decisions in the Upper Tribunal (Lands Chamber) have brought clarity to areas of the Code; however, operators are hoping that the government will review the Code in early 2021 and, perhaps, follow the example of other successful jurisdictions by engaging in a closer dialogue with operators, which is crucial to establishing a rapid 5G network in the UK.

Authors

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Hannah Drew Associate Director, UK hannah.drew@osborneclarke.com +44 20 7105 7184

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Emily Van Schalkwyk Partner, UK emily.vanschalkwyk@osborneclarke.com +44 117 917 3642