UK: Brexit And Telecoms Regulation: Where Do We Go From Here?

Last Updated: 8 November 2019
Article by Gordon Moir

As Brexit uncertainty persists, the future of UK telecoms regulation (as with much else!) remains in limbo. Looking ahead, even if a withdrawal agreement is signed, we merely move into a transition period while we attempt to negotiate a future relationship with the EU. In terms of how that future relationship would look, we have little guidance from Prime Minister Boris Johnson as to how he sees that relationship applying as regards to telecoms. Below we identify a number of issues that any future relationship will need to consider and what a no-deal Brexit in telecoms would look like.

1. Roaming, intra-EU texts and cross-border portability

Currently and during the transition period, the Roaming Regulation will continue to apply. In a no-deal scenario or if this is not negotiated as part of the future relationship, that Regulation will cease to have effect and, as the UK Government has itself acknowledged, the costs charged to UK operators by other EU mobile operators for the provision of roaming services would no longer be subject to the Roaming Regulation. Similarly, UK operators would no longer be subject to the provisions that govern what they can charge at the retail level, leaving the price of roaming services at the discretion of UK mobile operators. While all four large operators have said they have no current plans to move away from the present roaming tariffs, this is only a voluntary commitment and is not time bound in any way.

Either in a no-deal scenario or in a future scenario in which roaming is not included as part of the future relationship, operators are unlikely to want to face a consumer backlash if roaming costs go up. This means they may have to find other creative ways to offset increased costs.

The intra-EU text and SMS cap for consumers came into force on 15 May 2019 and, again, in a no-deal scenario, or if this is not part of the future relationship, UK operators would no longer be subject to this cap. Given the short time this cap has been in place in a no-deal scenario and the relative lack of visibility for most consumers (in contrast with roaming), it is difficult to see operators not taking the opportunity to increase charges above the cap levels once they are free to do so in that scenario. If there is a transition period, customers will have had longer to have the benefit of that cap and so operators may find it harder to move away from if that is not included in a future relationship.

Similarly, the cross-border portability regulation will also cease to apply in a no-deal scenario or if not included in the future relationship. Consumers who have grown used to accessing their Netflix, Amazon Prime or Now TV services whilst temporarily abroad could find that they are again faced with the dreaded words "this content is not available" unless they have decided to buy a "travel package". Of course, providers of online content may decide to retain the status quo. Again, however, this depends on a voluntary decision by them as to whether it is in their overall interests to do so. 

2. Reduced mobility of labour/skills shortages

Current UK Government targets are for full fibre broadband for 10 million premises by 2022, 15 million by 2025, and an aspiration for nationwide coverage by 2033. The Prime Minister Boris Johnson has described these targets as "laughably unambitious". He has suggested that he would like to reset the target to nationwide full fibre coverage by 2025. Achieving this target would require the deployment of fibre to around 5 million premises a year till that date. To achieve this rollout, operators have written to the PM suggesting they need four things: reform of the fibre tax, reformed wayleave provisions, compulsory full fibre broadband for new builds and access to skilled labour. Operators have said they need access to compete for global talent to bring in engineering and digital skills. The proposed £36,000-a-year cap for talent put forward by the Home Secretary Priti Patel, alongside an end to the free movement of people, means that the industry is likely to be severely resource constrained either in a no-deal Brexit scenario or in a number of variations of the future relationship (see comment below on derogations from ECC & EC Rules).

3. Import of telecoms equipment

Prior to 31 March, Openreach had announced that it was stockpiling equipment in case of a hard Brexit. No doubt, other operators had also been stockpiling ahead of a 31 October deadline. The UK is a net importer of telecoms equipment, and operators face not only stockpiling issues in order to ensure their equipment is not caught in transit delays but also currency fluctuations that will impact the price of equipment given the ongoing uncertainty around the outcomes. Given the UK's ambitions for full fibre rollout and deployment of 5G, how equipment importation is dealt with in any future relationship is important if the impact on these objectives is not to be negative.

4. Operations of UK-based global carriers in the rest of the EU and globally

In the event of no deal or no specific provisions in any future relationship on telecoms, carriers with cross-border services, especially those serving multinational customers, will look to rely on establishments or offices in other EU states to allow them to take advantage of the benefits of the free movement of services. Similarly, they are likely to look to contract out of these non-UK based entities to be able to benefit from EU procurement rules.

5. Wider changes to telecoms law

Recent policy pronouncements from the UK Government in the form of the Statement of Strategic Priorities and the recent consultation on implementation of the Electronic Communications Code (ECC) suggest that many of the policy initiatives pursued in the ECC are aligned with those of the UK Government on telecoms (which is not unexpected given the substantial UK input into the creation of the ECC).

If there is a withdrawal agreement and a transition, the UK will be required to implement the ECC.  Given that the current version of the withdrawal agreement foresees the possibility that the transition could be extended beyond December 2020, these provisions will not only be in force but will be being adopted in practice. It is therefore hard to see that the UK would substantially row back on these no matter what the outcome of the future relationship around telecoms.  Even if we do crash out without a deal we would expect to see that the UK would continue to adopt many of the changes in the ECC in a no-deal scenario.

 At the same time, however, we would expect that a Boris Johnson government might seek to introduce greater flexibility around fibre deployment and regulation in order to drive it forward. Importantly this may include some more fundamental changes in terms of the Government's position on state aid in the telecoms sector. While Theresa May's government had indicated that they would not look to move away from the EC position on state aid and competition, Boris Johnson's desire for a rapid rollout of broadband infrastructure may see a move away from this position.  His removal of the provisions of alignment and level playing field from the withdrawal agreement also suggests that he sees a more flexible state aid regime as a key part of any future relationship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions