Rules applicable to all UK telecoms operators to change

This article was published in February 2011 and reflects the regulatory position at that time. For current guidance on this topic, contact Bratby Law or see our latest insights.

Last week Ofcom started a consultation on revising the UK’s General Conditions of Entitlement and Universal Service Conditions. The consultation closes on 7 April, and will be followed by a statement, with implementation on or before 25 May 2011.

The changes are part of the UK’s implementation of the revised European Framework for electronic communications. In addition, (although not expressly part of this consultation) the UK will need to take account of the recent European judgment on the UK’s Court of Appeal’s reference as to what obligations may lawfully be imposed on designated universal service providers. This Ofcom consultation follows the broader, now closed (with responsibility transferred to DCMS), BIS consultation which covers wider changes to the Communications Act 2003, the Wireless Telegraphy Act 2006 and the Privacy and Electronic Communications Regulations 2003.

Within Europe and the UK, the scope of telecoms (or as it is more accurately now described, electronic communications) regulation is very broad, and as (some of) the General Conditions do, and will continue to, apply to any Communications Provider, the consultation will be of broad interest.

The main changes proposed are:

• a requirement that number portability takes place within one working day of an activation request being received by a donor Communications Provider. This will apply to fixed, mobile and bulk mobile porting requests and is to be backed up by accessible compensation schemes where this deadline is not met (GC18);
• access to emergency services (112/999) is to be provided via  SMS (GC15) as well as clarifying the scope of the access and the provision of location information obligation on network providers, resellers, VoIP providers (GC4);
• changes to mandatory contract terms (GC9):

1. ‘the maximum duration of initial consumer contracts will be 2 years; and users generally must be offered an option to contract for the provision of public electronic communication services and also make this information available to other end-users on request;
2. subscribers must be able to withdraw from contracts penalty-free following a notice of contract modifications; and for a maximum duration of 12 months; and
3. contract termination conditions and procedures for termination must not act as a disincentive to end-users from switching their providers.’;

• an extension of the requirement to maintain proper and effective functioning of the network to mobile and nomadic networks (GC3);
• the introduction of a process for transferring number allocations and permitting time-limited number allocations (GC17); and
• the introduction of an obligation on Communications Providers to provide end-users with access and the ability to use services behind any numbers in the European numbering plan, including non-geographic numbers. Although the wording change appears small, this could have significant impact on access to VoIP and other services (GC20).

Whenever changes are made to rules with general application it is inevitable that in addition to the intended consequences there will be unexpected or unintended consequences. Whilst contemporary press coverage focused on the changes to contract terms affecting retail contracts for smart phone contracts (views were mixed), and access to emergency services via SMSs (positively received) my suspicion is that the more ‘technical’ changes to the definitions, requirements to maintain network functionality, provision of location data, ‘number trading’ and most importantly the end-user right to access and use services will have much more significant long-term impact, even though not highlighted in Ofcom’s executive summary.