The main changes to expect stem from the overhaul project of the electronic communications framework initiated in September 2016.
Access to networks
Proposals in this area aim at creating the conditions for the competitive deployment of very high-capacity fixed and mobile infrastructure across the EU. In order to do so, updates of the rules concerning the imposition of regulation on operators are proposed so that they become more predictable.
The market analysis procedure by NRAs is updated with a codification of current best practices such as some elements contained in the Commission’s Recommendation on Relevant Markets (2002). For instance, the ‘three criteria test’ used to determine whether a specific market should be regulated (eg, high barriers to entry, no dynamic tendency towards effective competition and insufficiency of competition law) is codified. The Proposal also extends the current maximum market review period from three to five years; however, NRAs may still conduct such analysis within shorter intervals if market developments require it. New provisions are introduced for revision of remedies imposed by NRAs, for instance when market conditions have changed because of new commercial agreements or the breach of existing ones or new co-investment agreements. A double-lock system is introduced whereby in cases where BEREC and the Commission agree that a draft remedy would create a barrier to the single market, the relevant NRA may be required to amend or withdraw the contemplated measure.
A new requirement is proposed for NRAs to conduct geographical surveys of network deployments. On this basis, NRAs may designate ‘digital exclusion areas’ in which no operator or public authority has yet deployed nor plans to deploy a very high-capacity network nor has upgraded their legacy network to provide performance of at least 100Mbps download speeds. For such zones, NRAs may issue a call open to any operator to declare their intention to deploy very high capacity networks according to an efficient, objective, transparent and non-discriminatory procedure. This aims at ensuring more predictability for actors wishing to invest in such exclusion zones.
A codification of existing guidance regarding price control under the 2013 Recommendation on consistent non-discrimination obligations and costing methodologies is proposed. For instance, NRAs shall take into account, when determining the appropriateness of a price control measure, the interests related to the deployment and take-up of NGA networks and, in particular, very high-capacity networks. More generally, new provisions have been introduced to facilitate the deployment of network through co-investment in infrastructures.
Electronic communications services and end user rights
In order to take into account the recent development in the communications sector such as the increased use by end users of services based on Voice over IP, messaging services or web-based email services in place of traditional voice and SMS services, the Code proposed a new definition of the term ‘electronic communications service’. Three types of service categories are introduced: internet access services, interpersonal communications service (either based or not on a number) and services consisting wholly or mainly of the conveyance of signals. Most provisions apply indifferently to all electronic communications services except number-independent interpersonal communications services.
The proposal introduces a detailed list of information requirements to be included in end user contracts, which include, inter alia, information about the technical characteristics of the service, the price, the duration of the contracts and conditions for switching, procedures for dispute settlements or actions to be taken in security and integrity incidents. It should be noted that these requirements also apply to contracts with micro and small enterprises acting as end users. BEREC is given the task of issuing a decision on a contract summary template, identifying the main elements of the information requirements under the new provisions.
New provisions aimed at facilitating the switch from one service provider to another have been introduced, for instance, provisions dealing with the issue of bundles as an obstacle to switching.
Wireless networks and spectrum
Regarding spectrum, a new decision was adopted in May 2017 (Decision (EU) 2017/899 of the European Parliament and of the Council of 17 May 2017 on the use of the 470-790MHz frequency band in the Union). It provides for exclusive access to the 700MHz band (694-790MHz) to mobile operators by 30 June 2020. It also provides for a delay of relocation of up to two years in duly justified limited cases (unsolved cross-border coordination issues resulting in harmful interferences, the need to ensure the technical migration of a large amount of the population to advanced broadcasting standards, the financial costs of transition exceeding the expected revenue generated by award procedures, force majeure). Finally, it affirms that broadcasting services will stay a priority in the sub-700MHz (470-694MHz) at least until 2030 based on national needs. As part of its 5G for Europe Action Plan (part of the Digital Single Market Strategy), the Commission proposed to make available provisional spectrum bands for 5G ahead of the 2019 World Radio Communication Conference (WRC-19) to be complemented by additional bands.
In order to promote the efficient use of spectrum, the Code proposes clearer powers for NRAs and other competent authorities to check the compliance of operators with the conditions attached to rights of usage of spectrum and numbers including the conditions related to coverage. The Code also proposes that where member states grant rights of use for harmonised radio spectrum for a limited period of time, those rights should be valid for at least 25 years. This aims at ensuring return on investment and providing more predictability for all market players. However, stricter requirements as to the actual use of spectrum would be put in place. The Code also promotes the coordination of assignment deadlines by implementing decisions taken by the Commission, which can include transitional measures regarding the duration of rights. Renewal of rights is also dealt with, with a focus on greater predictability in order to ensure better business continuity.
One of the objectives of the Code is to increase consistency of selection procedures and conditions attached to spectrum usage rights through a peer review system with BEREC acting as leader. For instance, it is provided that where an NRA adopts a spectrum management measure, it shall make the draft measure accessible to BEREC, to the Commission and NRAs of other member states at the same time and BEREC shall issue a reasoned opinion on the draft measure including whether the draft should be amended or withdrawn. If the NRA does not follow the opinion of BEREC it shall provide a reasoned justification. Provisions are also introduced in order to promote greater flexibility for the access to spectrum resources, in particular predictable conditions for spectrum trading and leasing.
NRAs and BEREC
Generally, the proposed Code reinforces the role of NRAs, both at national and European level, to increase consistency and predictability of application of the rules in the context of the Digital Single Market. The set of competences and independence of NRAs at national level are reinforced at European level, the role of BEREC is enhanced and NRAs and BEREC are both given the objective to promote, inter alia, better end users’ access to and development of very high capacity connectivity.
The proposed Code lays down an obligation for member states to ensure affordable access to all end users to internet access and voice communications. The minimum list of services is presented as a dynamic list that can be amended by a delegated act by the Commission. In addition, member states may require operators to provide affordable tariff options and a right to contract for low income or special needs end users where a lack of affordability is observed (article 80 of the Code).
The Code introduces a revision of the funding regime of universal service, with compensation from public funds for net costs of the universal service when it represents an unfair burden on a particular operator.
The proposal also takes into account the increasing convergence between fixed and mobile networks by requiring that affordable fictional internet access and voice communications services should be provided at least at a fixed location, indicating that member states now have the possibility to extend universal service to mobile services, not at a fixed location.
Finally, the proposal promotes more flexibility for member states. For instance, they may require operators to continue the provision of services falling under the scope of current universal services obligations (such as pay phones or directories) if the need to do so is demonstrated.
A certain number of provisions are introduced in relation to numbering with the aim of enabling extraterritorial use of non-geographic numbers, allowing the possibility to assign numbers to non-electronic communications services providers and to promote over the air provision of numbers in order to facilitate switching.
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