DLA Piper Intelligence

Telecommunications
Laws of the World

Overview of legal landscape

United Kingdom
United Kingdom

Subject to a handful of discrete exemptions (concerning the use of spectrum), communication providers have general authorisation to operate in the UK and do not require a licence, permit, consent etc.

This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States. Unlike other Member States the UK does not require any notification to the telecoms regulator, the Office of Communications ('Ofcom').

The roles and responsibilities of Ofcom are codified in the key telecoms legislation in the UK, the Communications Act 2003. Ofcom regulate the TV and radio sectors, fixed line telecoms, mobiles, postal services, plus the airwaves over which wireless devices operate.

Last modified 7 Oct 2016
Overview
United Kingdom

Subject to a handful of discrete exemptions (concerning the use of spectrum), communication providers have general authorisation to operate in the UK and do not require a licence, permit, consent etc.

This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States. Unlike other Member States the UK does not require any notification to the telecoms regulator, the Office of Communications ('Ofcom').

The roles and responsibilities of Ofcom are codified in the key telecoms legislation in the UK, the Communications Act 2003. Ofcom regulate the TV and radio sectors, fixed line telecoms, mobiles, postal services, plus the airwaves over which wireless devices operate.

Last modified 7 Oct 2016
Laws and regulations

The primary legislation governing the telecommunications in the UK is the Communications Act 2003 which came into force on 25 July 2003 (largely replacing the Telecommunications Act 1984). The Communications Act 2003 implements the following European Directives:

  • Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services
  • Directive 2002/20/EC on the authorisation of electronic communications networks and services
  • Directive 2002/ 19/EC on access to and interconnection of electronic networks and associated facilities
  • Directive 2002/22/EC on universal service and user rights

These directives form the framework on which the Communications Act 2003 is based.

In addition to the Communications Act, the following legislation (and subordinate legislation sitting underneath) may also impact the provision of communication services and the operation of communication networks:

  • The Wireless Telegraphy Act 2006 which sets out the regulatory framework for radio spectrum
  • The Competition Act 1998
  • The Data Protection Act 1998 which governs the processing of personal data
  • The Regulation of Investigatory Powers Act 2000 which governs the interception of the communications. For example, the Act permits certain public bodies to require ISPs to provide access to a customer's communications in secret

The key features of the Communication Act are:

  • Although communication providers are generally authorised, this authorisation is subject to compliance with the General Conditions of Entitlement published by Ofcom here. The primary purpose of this is to protect recipients of communication services and they include conditions regulating the contents of bills, accessibility of information etc. It is the responsibility of each communications provider to consider which of the current 24 General Conditions are applicable to the services they provide.
  • In addition to the published General Conditions of Entitlement, Ofcom has the power to set specific conditions relating to universal services, access, privileged suppliers and - most notably - 'significant market power' (SMP). In accordance with the EU directives mentioned above, Ofcom has a duty to periodically review the telecoms markets recommended for review by the European Commission, and where it finds that one (or more) operators have SMP it must impose such a condition on the SMP operator(s).
  • The regulation and allocation of telephone numbers and controls and restrictions relating to premium rate telephone services.
  • The principle of universal service; that affordable basic telephony services should be available to everyone.
  • Ofcom is empowered to hear disputes between communications providers (although referral to Ofcom does not preclude the bringing of court proceedings).

The Electronic Communications Code ('the Code') sets out the powers that can be given to providers of electronic communications networks (ECNs) and providers of conduit systems available for use by providers of ECNs to enable them to install and maintain electronic communications apparatus.

Last modified 7 Oct 2016
Regulatory bodies

Ofcom

Address: Ofcom Riverside House, 2a Southwark Bridge Road, London, SE1 9HA

Website: www.ofcom.org.uk

Last modified 7 Oct 2016
Regulated activities

Broadly speaking there are two types of communication providers for the purposes of the Communications Act; providers of electronic communication networks (ECNs) and providers of electronic communication services (ECS). The categories are then further sub-divided into public and private providers. 

A electronic communication network is defined in the Communications Act as:

  • A transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description
  • Such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals

    • Apparatus comprised in the system

    • Apparatus used for the switching or routing of the signals

    • Software and stored data

An 'electronic communications service' means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals (except in so far as it is a content service). As the above hopefully illustrates, there is a breadth of regulated activities.  Even if a service is provided over the use of another's network (or through an agreement with a communications provider), the entity providing that service is subject to the same regulations and so is considered a communications ECS provider. Those regulations principally are the General Conditions of Entitlement described above.

Ofcom also regulates the allocation of telephone numbers in the UK. The provision of certain premium rate services may require prior permission from another regulator, PhonePay Plus and there are also various codes of practice which premium rate service providers must adhere to.

Last modified 7 Oct 2016
Registration / licensing

Communication providers have general authorisation to operate in the UK and do not require a licence, permit, consent etc.  This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States. Unlike other Member States the UK does not require any notification to the telecoms regulator, OfCom.

Mobile operators (and other users of spectrum) do require a licence from Ofcom in order to install certain mobile network equipment.

Last modified 7 Oct 2016
Establishment

From a telecoms regulatory perspective, there are no requirements for a communications provider to be domiciled in the UK prior to or during the provision of services.  Advice should however be sought from a tax perspective.

Last modified 7 Oct 2016
Interconnection/roaming

The General Conditions require all providers of public electronic communications networks (irrespective of ownership) to 'negotiate' interconnection with other providers of public electronic communication networks with a view to reaching agreement within a reasonable time.

In addition, where Ofcom has found SMP following a market review it typically imposes an access-condition concerning an obligation to offer interconnection or related services.

Moreover Ofcom has the power to impose access conditions in the absence of SMP.  Since 2011 there has been an increased use of access-related conditions to encourage sustainability, efficient investment in infrastructure, to promote innovation and to ensure 'end-to-end connectivity' within the UK network.  Access related conditions may, for example, be imposed by Ofcom on:

  • Providers of a subscription service or service accessed using an authorisation card (known as conditional access system)
  • Code operators under the Electronic Communications Code

Ofcom (via an SMP designation) regulates the wholesale rates for termination of phone calls from other networks or their customers.  All operators are currently required to provide call termination on fair and reasonable terms, conditions and charges.

Last modified 7 Oct 2016
Consumer protection

The General Conditions of Entitlement contain a number of consumer specific provisions. A 'consumer' is defined as someone who uses or requests a service for non-business use, which would include someone not contractually bound to the supplier.

Specific obligations relating to consumers include:

  • The requirement to include certain minimum terms in consumer contracts (condition 9)

  • Conditions relating to term and termination

  • The requirement to make certain information available to the customer, such as a description of the services offered and the standard tariffs

  • Availability of number portability

  • Restrictions on sales and marketing activities

In addition to specific telecoms regulations and codes, provisions of general consumer law also apply, such as rules concerning unfair consumer terms.

Last modified 7 Oct 2016
Taxes and fees

A mobile operator is required to pay a licence fee when granted a licence to install mobile equipment under the terms of the Wireless Telegraphy Act 2006. 

All service providers with relevant turnover in excess of a set threshold (currently GBP 5,000,000) must also pay an 'administrative charge' currently set at around 0.0833% of turnover.

Last modified 7 Oct 2016
Enforcement

Where Ofcom (acting reasonably) identifies a breach, it will notify the relevant provider and require it to take necessary steps to rectify the breach.  Failure to comply with the initial notice may lead to Ofcom issuing an enforcement notice and where the terms of the enforcement notice are not complied with, Ofcom may instigate civil proceedings and levy a fine.  In addition, in the most serious of cases, Ofcom may suspend or restrict the providers entitlement to provide a regulated communications service and require that compensation is paid to the providers' customers.  Breach of a direction is a criminal offence although providers in receipt of a notice or direction must be given the opportunity to make representations in their defence.

Ofcom has the power to issue enforcement notices to cease persistent misuse of a network or service. Ofcom may also require entities to provide certain information relating to Ofcom's regulation or networks and services. 

Last modified 7 Oct 2016
Contacts
Mike Conradi
Mike Conradi
Partner
T +44 (0)207 796 6603
Amanda Pilkington
Amanda Pilkington
Partner
T +44 (0)114 283 3071
Last modified 7 Oct 2016