|IntroductionThe new EC Regulatory Framework was implemented on 25 July 2003. The basis for the new regulatory framework is five EC Communications Directives that are intended to converge and harmonise communication regulation throughout the EC. The first four of the five Directives below were implemented by the Communications Act 2003. The fifth is being implemented separately in the Autumn of 2003 .|
Legal basis for framework
The principal legal documents of the new framework are:
Directive 2002/19/EC - on access to, and interconnection of, electronic communications networks and associated facilities (the Access Directive);
Directive 2002/20/EC - on the authorisation of electronic communications networks and services (the Authorisation Directive);
Other relevant legal documents
Other elements of the EC package are:
Directive 2002/77/EC - Competition in the markets for electronic communications services
Guidelines 2002/C 165/03 - on Market Analysis and the calculation of Significant Market Power
Decision 2002/676/EC - on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision)
Recommendation - on Article 7 notifications
List of standards - and/or specifications for electronic communications networks, services and associated facilities and services under Article 17 of the Framework Directive
Decision 2003/548 - on the minimum set of leased lines with harmonised characteristics and associated standards referred to in Article 18 of the Universal Service Directive
Recommendation 2003/558 - on the processing of caller location information in electronic communications networks for the purpose of location-enhanced emergency call services
Main changes from the previous regime
The new regime has some significant changes from the old. The principal ones which relate to telecommunications are:
For further information on the new EC Communications Directives and Oftel's implementation see: .
What will apply on 25 July 2003
Publications and Consultation documents
Andrew McWhir � tel: 020 7634 5306 or e-mail at email@example.com
The New Framework Directives
The general conditions of entitlement – Q&A
What does this mean?
The general conditions are a set of rules which will apply to the provision of an electronic communications network or an electronic communications service from 25 July 2003, which is the implementation date for the new EC Communications Directives. These new Directives require the abolition in the UK of the current telecommunications licensing regime. Licences are to be replaced by a regime of general authorisation to provide electronic communications networks and services coupled with general and specific conditions. The general conditions will apply to all network and service providers (or all network and service providers of a particular type), whereas the specific conditions will be imposed on individuals, for example those with significant market power or designated universal service obligations.
What is an �electronic communications service� or �electronic communications network�?
These terms have strict legal definitions in the new EC Directives and the Communications Act. In general terms, an electronic communications service is a conveyance service for signals, for example a fixed or mobile telephone service. An electronic communications network is a transmission system used for the conveyance of signals, for example a telephone network or an IP data network (used for the transmission of data signals e.g. emails).
What happens next?
The conditions enter into force on 25 July 2003 by virtue of the publication of a notification by the Director under section 48(1) of the Communications Act. The conditions may be modified in future, but only after a consultation in accordance with the procedures set out in the Act. The Director will enforce the conditions, until Ofcom is ready to assume full functions later this year.
Which companies will the new general conditions cover?
Under the new Directives and the Communications Bill, general conditions may be set which apply to anyone providing an electronic communications network or an electronic communications service. However, most of the general conditions proposed in the consultation document are drafted so that they only apply to a limited set of network or service provider, for example providers of publicly available telephone services or providers of public electronic communications networks. It will be the responsibility of all providers of electronic communications networks and services to read the general conditions and determine which conditions apply to them, depending on the kind of network or service they are providing. To assist, Oftel has produced guidance aimed at service providers (seehttp://www.oftel.gov.uk/publications/eu_directives/2003/spfaq0503.htm ) and ISPs (seehttp://www.oftel.gov.uk/publications/eu_directives/2003/ispfaq0303.htm )
In simple terms, what are the main differences between this and the old system? And what differences could this mean for consumers?
The main difference is that all communications providers will only need to look to one set of general conditions to ensure they are complying with the law. There will not be different �licences� containing different conditions any longer. This also means that communications providers are responsible for ascertaining which of the general conditions applies to them and their operations � they will not be issued with a personal licence which sets out their obligations. The obligations themselves are similar to those contained in current licences, although they have been redrafted in line with the new EC Communications Directives and the Communications Act. The new general conditions ensure that all communications providers provide a basic level of consumer protection. By looking at the general conditions, a consumer will be able to gain an understanding of their rights as against a communications provider, for example, what they may require in their contracts, termination and disconnection rights, and itemised billing.
What about dominant companies?
Companies who have been found to have Significant Market Power (SMP) as a result of a market review may be subject to further specific conditions which will apply in addition to the general conditions. Oftel is currently undertaking the process of market reviews to determine which companies should be subject to these specific conditions under the new regime. These will be the subject of separate Oftel consultation.
Does this mean you are relaxing regulation?
While there are obligations which apply to telecommunications systems operators at present which will not be carried forward into the new regime, it is more accurate to say that the general conditions represent a simplification and application of appropriate regulation. One set of general conditions applicable to all will provide a more streamlined and transparent regime for current and new operators and service providers.
Which companies will be required to negotiate interconnection under the new regime?
A company which provides a public electronic communications network will be required to negotiate interconnection with other such companies. Oftel has produced further guidance on this aspect of the new regime:http://www.oftel.gov.uk/publications/eu_directives/2003/intercon0503.htm
What will happen after the Directives come into force but before Ofcom is set up?
Under either the Communications Act 2003, the Director will be responsible for setting and enforcing the general conditions until the formal �hand over� to Ofcom, expected later this year.
Will Oftel be able to fine companies in that period?
Yes � new powers allow the Director to impose a penalty of up to 10% of turnover upon a company or individual for breach of a general or specific condition.
Has Oftel used its powers to fine companies?
Oftel currently only has powers to fine companies under the Competition Act � not for breach of a licence condition.
Will Ofcom still have Competition Act powers?
Yes � Part 5 of the Communications Act sets out where Ofcom will share Competition Act powers with the Office of Fair Trading.
Does the Government have to approve the conditions that Oftel has drafted?
What about the other industries that will come under Ofcom - how will they be regulated?
The new framework required by the EC Directives is intended to apply electronic communications networks and services providers, which will include some companies using radio spectrum under licence or exemption from the Radiocommunications Agency, and also some broadcasters. Further details on how the new Directives will effect the regulation of radio spectrum can be found on the RA�s website www.radio.gov.uk. The new Directives do not apply to the provision of content, only conveyance, and the networks over which such conveyance occurs.
Can you give an example of a communications network operator/service provider that won't need to meet all the general conditions? Which ones will they still need to meet?
Because most of the general conditions have a consumer protection focus, most of them only apply where a communications network or service is being provided directly to the public. However, the following obligations will apply to all providers of electronic communications networks and services in the circumstances set out in the draft condition:
The conditions that an ISP has to meet will be different from the ones a network operator has to meet. In what ways will they vary?
To the extent that an ISP is providing electronic communications services to the public, they will have to meet the obligations that apply to the provision of such services (e.g. Requirement to provide Contracts with Minimum Terms, Codes of Practice and Dispute Resolution, Metering and Billing). If the ISP is also running a network they will also be subject to relevant obligations. Further information for ISPs can be found athttp://www.oftel.gov.uk/publications/eu_directives/2003/ispfaq0303.htm
How will Oftel/Ofcom ensure that operators are meeting the conditions? Will you check or simply wait for someone to complain?
Oftel/Ofcom will be entitled to require information from operators with respect to their compliance with the conditions where Oftel/Ofcom suspect that a contravention has occurred. In general, this will mean that a complaint will be received leading to an investigation. However, Oftel/Ofcom can initiate their own investigations of they consider that there may be a breach. If a breach is discovered, Oftel/Ofcom then may take enforcement action.
Note: The information posted here is intended to be helpful and informative but needs to be read with the understanding that the information is general in nature. This information cannot be taken as applying absolutely to individual cases where a particular set of circumstances needs to be taken into account. This information can not act as a substitute for specific legal advice. Any person requiring legal advice in relation to the new regime is advised to seek their own independent legal advice. This information does not fetter the discretion of the Director General of Telecommunications or Ofcom to resolve any dispute or investigate any matter to which this information addresses.