October 14, 2022
Welcome to the sixth edition of our Communications & Competition newsletter – a place where we collate the most interesting developments for the communications sector and latest key competition law developments. If you’ve been forwarded this newsletter by a colleague and would like to subscribe, please click here.
The busy summer trend we observed in the Communications space has continued over the past month, with a range of interesting developments. Security remains a focus, with the EU publishing a proposal for regulation on cyber security requirements for products with digital elements, and the new UK Electronic Communications (Security Measures) Regulations 2022 and a draft Telecommunications Security Code of Practice being laid before Parliament in the UK.
Mid-contract price rises, transparency on contract information and rights of exit have also been a focus for UK regulators, with the aim of protecting customers. At EU level, the Digital Markets Act has been signed by the EU Council and Parliament – and on 4 October, the EU Council formally adopted the Digital Services Act, which will introduce obligations on providers of various online intermediary services (e.g., social media and online marketplaces) – with the aim of ensuring a safer and more open digital space for users and a level playing field for companies.
EU – The Digital Markets Act
The Digital Markets Act was recently signed and adopted by the EU Council, which means large online platforms will have several obligations and prohibitions placed on them. Failure to comply with the new rules could result in fines, and where necessary, behavioural or structural remedies may be used. To find out more, click here.
Body of European Regulators for Electronic Communications (BEREC) and US Federal Communications Commission (FCC) sign Memorandum of Understanding
BEREC and the FCC have reconfirmed their ongoing partnership on topics of mutual interest by signing an updated version of their Memorandum of Understanding (MoU) on their international cooperation. The MoU outlines how BEREC and the FCC commit to regularly exchange information, share technical skill sets and best practices and meet to help facilitate action. To find out more, click here.
Court of Justice of European Union confirms that providers of electronic communications services cannot retain traffic data generally and indiscriminately as a preventive measure for the purpose of combating market abuse offences, including insider dealing
Following an investigation by the Autorité des marchés financiers, criminal proceedings were brought in France against VD and SR in respect of insider dealing, concealment of insider dealing, aiding and abetting, corruption and money laundering. The CJEU found inter alia that the Market Abuse Directive and the Market Abuse Regulation, read in conjunction with the E-Privacy Directive and in the light of the Charter of Fundamental Rights of the EU, do not authorise the general and indiscriminate retention by providers of electronic communications services of traffic data for a year from the date on which they were recorded for the purpose of combating market abuse offences including insider dealing. To find out more, click here.
European Commission publishes proposal for Regulation on cyber security requirements for products with digital elements, known as the Cyber Resilience Act
The Cyber Resilience Act aims to bolster cyber security rules to ensure that more hardware and software products are secure. The Commission notes that the new rules will rebalance responsibility towards manufacturers, who must ensure conformity with security requirements of products with digital elements that are made available on the EU market. To find out more, click here.
Government lays new telecoms security Regulations and an accompanying draft Code of Practice in Parliament
The Government has laid the new Electronic Communications (Security Measures) Regulations 2022 in Parliament, along with a draft Telecommunications Security Code of Practice. The Regulations come into force on 1 October 2022 and set out security measures that public telecoms providers need to take, which are designed to ensure that public networks and services are following appropriate and proportionate security practices. Public telecoms providers that fail to comply with the Regulations could face fines of up to 10% of turnover or, in the case of a continuing contravention, £100,000 per day. To find out more, click here.
Ofcom publishes statement on right-to-exit guidance on broadband speeds codes of practice
On 22 September, Ofcom published an update to the Residential and Business Voluntary Codes of Practice on Broadband Speeds. These codes give residential and business customers the right to exit their broadband contract and bundled services, without penalty, if their download speed falls below the minimum guaranteed speed they were offered by their provider. To find out more, click here.
CAP and BCAP consult on new guidance for telecoms ads and mid-contract price rises
CAP and BCAP are seeking views on proposed new guidance that would require information about mid-contract prices to be more prominently stated in telecoms ads across media, to avoid misleading consumers. The consultation is open for responses from organisations and members of the public until 5pm on Thursday 17 November. To find out more, click here.
New Mobile Roaming Cap signed by UK for using data and making calls and texts in Norway and Iceland
At the end of September, the UK signed a new Free Trade Agreement which allows UK mobile operators to offer their customers surcharge-free mobile roaming in Norway and Iceland by creating a mechanism to cap rates operators charge each other. Once a decision is in place on this, the UK Government plan to introduce secondary legislation in early 2023 to implement this change. To find out more, click here.
Ofcom launches an investigation into EE’s compliance with its contract information obligations
Ofcom recently launched an investigation into whether EE has failed to comply with their obligations to provide customers with certain contract information before they sign up to a new contract. To find out more click here.
Secretary of State for Digital, Culture, Media and Sport announces Government intention to replace UK GDPR
At the recent Conservative Party Conference, Michelle Donelan, the new DCMS Secretary of State, announced the Government’s intention to replace the UK GDPR with “our own business and consumer-friendly, British data protection system” to “creat[e] more wealth and prosperity through our tech, digital, cyber, creative, cultural and arts sectors” and get rid of the “significant amount of red tape in our way”. To find out more, click here.
Ofcom announces it is to probe cloud, messenger and smart-device markets
On 6 October, Ofcom launched a market study into the UK’s cloud services market. The largest providers of cloud services, known as “hyperscalers”, generate around 81% of revenues in the UK public cloud infrastructure services market. Ofcom’s study will formally assess how well this market is working and consider any market features that might limit innovation and growth in this sector. Those interested in responding have until 3 November to express their views. To find out more, click here.
The EU General Court confirms the EU Commission’s decision against Google
The EU General Court has upheld the 2018 decision of the EU Commission relating to Google and their breaches of EU Competition rules, as they placed restrictions on mobile network operators and manufacturers. The ruling is a clear indication of what enforcement action the EU Commission will take against Big Tech organisations. To find out more, click here.
The UK Secretary of State for Business, Energy and Industrial Strategy (‘BEIS’) clears the acquisition of satellite provider Inmarsat by Viasat – National Security Review
On 15 September BEIS approved the proposed acquisition of Inmarsat (based in the UK) by its rival Viasat (based in the US) following a National Security and Investment Act 2021 review.
The acquisition is subject to assurances given by both parties, such as implementing measures that would protect information from unauthorised access. The UK CMA and EU Commission have also been investigating the proposed deal. See further below. To find out more, click here.
CMA Competition concerns on Viasat merger with Inmarsat satellite communication deal
On 6 October, the CMA found that the proposed Viasat merger with Inmarsat raises a number of potential competition risks, including the possibility of airlines facing higher prices for on-board wifi.
The CMA’s latest update has set out a number of concerns with the proposed deal and the parties now have to submit proposals to address the CMA’s competition concerns. To find out more click here.
House of Lords Library publishes Library Briefing on Ofcom (Duty regarding Prevention of Serious Self-harm and Suicide) Bill
The Ofcom (Duty regarding Prevention of Serious Self-harm and Suicide) Bill would require Ofcom to establish a unit to advise the Government on the extent of content on social media platforms which could be seen to encourage self-harm or suicide. To find out more, click here.
Online Safety Bill to proceed with certain amendments
The Prime Minister, Liz Truss, has confirmed that the UK government will proceed with the Online Safety Bill, after a number of doubts were raised around its continuation. Concerns had been raised over the “legal but harmful” definition given and the obligations it may pose on platforms to regulate offensive posts. In light of this, the Government has published two fact sheets on the amendments it made to the Online Safety Bill in July 2022. To find out more, click here.
The Electronic Communications (Universal Service) (Amendment) Order 2022 published
The Order amends the Electronic Communications (Universal Service) Order 2003 to remove the requirement that the publicly available telephone services that a universal service provider must provide, where reasonably requested by an end-user, must be capable of allowing end-users to make and receive facsimile. It also amends the definition of “publicly available telephone service”. The Order will come into force on 1 October 2022. To find out more, click here.
Ofcom publishes Connected Nations autumn update
The autumn update shows that the roll-out of full-fibre broadband continues apace, with the number of UK homes with access to it rising by more than 50% in a year. Ofcom has also published research on how small and medium sized enterprises are using communications services. To find out more, click here.
European Electronics Communication Code (EECC) Tracker
For the latest update on the varied implementation of EECC we are observing across the UK and in the EU/EEA, please find attached our latest European Electronic Communications Code tracker – which provides an at-a-glance view of implementation as well as a detailed summary of the current status for each territory. The main change this month is that the EECC has now been fully adopted in Slovenia. However, an implementation date is yet to be determined as further legislation needs to be drafted for it to take full force.