Radar - December 2019 – 6 / 8 观点
This year's highlights include:
BEREC published Guidelines on Intra-EU Communications in March, intended to help ensure consistent application of Regulation 2018/1971 which covers retail price caps for intra-EU communications. The guidelines explain the nature and scope of the rules on consumption and charging intervals.
In July, Ofcom published its approach to assessing compliance with aspects of the Open Internet Regulation in the areas of zero-rating traffic data, and traffic management practices.
The CJEU held in June that a VoIP protocol service is an Electronic Communications Service (ECS) under the Framework Directive.
The Directive defines an ECS as a service normally provided for remuneration that consists wholly or mainly in the conveyance of signals on electronic communications networks (ECNs). The definition excludes content services and information society services that do not consist wholly or mainly in the conveyance of signals on ECNs.
This ruling was on a reference from Belgium relating to Skypes 'SkypeOut' service which allows users to make VoIP calls from their terminal to a fixed or mobile line on the public switched network although not to receive incoming calls.
The CJEU was asked whether Article 2(c) of the Framework Directive must be interpreted as meaning that the provision by a software publisher of a feature offering a VoIP service which allowed the user to call a fixed or mobile number covered by a national numbering plan from a terminal via the PSTN of a Member State had to be classified as an ECS, provided that the software publisher was remunerated for the service and the service provision involved the conclusion of agreement between the software publisher and telecoms service providers authorised to send and terminate calls to the PSTN.
The CJEU held that it did constitute an ECS. Just because SkypeOut accessed the VoIP service by using an internet access service provided by an ISP which was itself an ECS, did not imply SkypeOut could not also be an ECS in its own right. The service was not excluded from being an ECS by virtue of being bundled with other services as it had a distinct purpose and operated autonomously. The fact that the terms and conditions stated that Skype assumed no responsibility for the transmission of signals to users of SkypeOut had no bearing. In addition, the fact that SkypeOut was an ISS did not mean it could not also be an ECS.
A week later, the CJEU rulTed that a web-based email service such as Google’s Gmail does not constitute an electronic communications service under EU law (case C-193/18). The Court thus rejected an attempt by the German Federal Network Agency to subject such web services to the German Telecommunications Act, which would allow authorities to access the services' data for surveillance purposes.
According to the CJEU, while email services such as Gmail do convey signals, they do not consist "wholly or mainly" in the conveyance of signals on electronic communications networks. What matters in this regard is the extent of the service provider’s responsibility for conveyance of the signal. In this instance, it was held not to be sufficient that a web-based email service actively participates in the sending and receipt of messages by assigning to email addresses the IP addresses of the corresponding terminal devices, or by splitting messages into data packets and uploading them to the open internet.
This means that 'over-the-top' services (OTT) which provide communications services via the open internet without themselves providing internet access (eg web-based email, instant messaging, video services) cannot be regarded as electronic communications service providers under the Framework Directive.
In July, DCMS consulted on its proposed implementation of the European Electronic Communications Code (EECC). It anticipates that the UK will need to adhere to the transition date under any EU withdrawal agreement. The consultation set out the government's plans around access and investment incentives, radio spectrum, end-user rights, universal service obligations, mobile and fixed termination rates and network security and resilience.
In a technical notice, the government stated its intention to implement the EECC even in a no-deal Brexit scenario.