Brexit has rarely been out of the headlines recently, and speculation abounds as to the political and economic ramifications of a UK withdrawal from the EU. Discussions and commentary has largely focused, until now at least, on the impact of a Brexit on the UK's political influence abroad, market access and on free movement.
One important, albeit less evident, issue that has not featured in this debate is the impact that Brexit is likely to have on telecommunications markets in the UK. This note discusses the effect that Brexit is likely to have on telecommunications market regulation in the UK, and the potential implications for stakeholders in the industry both within and beyond the UK.
The impact of Brexit, if it happens, on the UK and other countries will depend to a large degree on the withdrawal arrangements and conditions agreed upon between the UK and the EU. We will provide further updates, in the event of a vote to leave the EU, as the likely future relationship of the UK to the EU becomes known.
Telecommunications-specific regulation under EU law
The provision of telecommunications services in the EU is subject to a sector-specific regulatory regime established mainly by a set of EU Directives. These Directives collectively comprise the core regulatory framework for electronic communications in Europe (the "Regulatory Framework") and are required to be transposed into and applied in Member State law by the national legislators. In the UK, this has mainly been done through the Communications Act (2003), although other primary legislation (including the Wireless Telegraphy Act (2006)) and secondary legislation are also relevant. The Directives would continue to be relevant to the interpretation of the UK statutes where there are ambiguities in the UK legislation, insofar as the UK legislation was intended to transpose the EU Directives. However, on ceasing to be part of the EU, the UK would be free to change its laws that were originally introduced in accordance with EU Directive requirements.
The Regulatory Framework is aimed at harmonising national telecommunications regulatory rules across the EU, promoting harmonisation of telecommunications regulation, liberalisation and competitiveness of telecommunications markets and protection of customer and end-user rights. The issues addressed under the Regulatory Framework range from mandating telecommunications network access, to radio spectrum management, and to data privacy, number portability and consumer access to emergency services.
The European Commission (the "Commission") has also more recently, in 2014, issued a Directive on access to passive network infrastructure, including masts, ducts towers and poles. The UK would no longer be required to maintain laws in the terms of this Directive once it ceased to be a Member State of the EU.
In order to ensure the harmonised application of the Regulatory Framework at Member State level, national regulatory authorities are required to notify to the Commission all proposals to analyse telecommunications markets and all proposed regulatory conditions to be imposed on operators designated as having significant market power, for prior review/consultation. Consequently, Ofcom in the UK is required to notify the Commission of any draft proposals that it has for regulating national electronic communications markets, such as the markets for broadband access or voice call termination, but would no longer need to do so following a UK exit from the EU.
A number of additional instruments have been enacted at EU level which are directly applicable to the provision of telecommunications services in the EU. These include the Roaming Regulation, for example, which regulates wholesale and retail roaming charges within the EU. Further, the Commission has issued Recommendations on a number of regulatory issues, including on non-discrimination obligations and costing methodologies for network access. All of these measures would cease to apply in the UK if the UK were to leave the EU.
Finally, the Commission has also established a range of policy targets for the EU telecommunications market, including the ambitious broadband access targets set down under the Digital Agenda for Europe (e.g., 30 Mbit/s broadband availability for all by 2020).
The effect that Brexit would have on telecommunications regulation in the UK
A UK withdrawal from the EU would mean that the Regulatory Framework would cease to be applicable in the UK. This is unlikely to give rise to any immediate consequences, however, as the Regulatory Framework has already been transposed into UK law through national legislation. This national legislation would continue to be valid and applicable following a UK exit.
In addition, some of the instruments enacted by the Commission that fall outside of the Regulatory Framework, but which are aimed at harmonising telecommunications regulatory requirements across the EU, would no longer be applicable. These include the Commission's Recommendations on non-discrimination obligations and costing methodologies for network access, as mentioned above.
- Digital Single Market measures
Depending on the exact timing of a Brexit, it is possible that the reforms that come out of the review of the Regulatory Framework currently being undertaken as part of the Digital Single Market (DSM) initiative will not be implemented into UK law, or that they will not be maintained in UK law following a Brexit. These reforms under the DSM project include a review of and revisions to the Regulatory Framework, and are expected to address a number of important issues, including the regulation of new services and technologies such as over-the-top ("OTT") services. If the UK were to leave the EU before the date set for the implementation into national law of the relevant Directives containing these reforms, they will not take effect in the UK unless the UK chooses to make parallel reforms.
In the same manner, the Directives planned under the DSM project concerning contracts for the supply of digital content and for the online and distance sales of goods may not find their way into UK law or may not be retained under UK law, depending on the required national implementation dates of the eventual Directives and the date that a Brexit takes effect. These measures are currently seen as consumer-friendly and as relatively onerous for businesses.
Similar considerations apply to other customer protection orientated reforms contained in the DSM initiative, and specifically those that will be legislated for as EU Regulations rather than Directives. A good example here is the proposed Regulation on the cross-border portability of online content services. It is possible that this will be adopted and brought into force, having direct applicability as a Regulation, before a UK exit date. The Regulation will then automatically cease to apply upon the UK ceasing to be an EU Member State. This may be welcomed by media rights holders (licensors) but unwelcome to consumers and users of online content.
Another important consequence of a Brexit would be that UK consumers would no longer be able to benefit from the Roaming Regulation in respect of their use of international roaming services, when travelling within the EU. The flip side, of course, is that, in such a scenario, UK operators would also no longer be subject to regulated roaming tariffs at the wholesale level. However, as a commercial matter, one might expect that any wholesale rate rise on the part of UK operators would be likely to be reciprocated by their counterparts elsewhere in the EU. This could prove to be a costly move for UK industry in the event of unfavourable tourist/traveller flows between the UK and the rest of the EU. There has been speculation that the UK might, post-Brexit, introduce UK legislation with the purpose of ensuring as far as possible a parallel roaming regime in the UK to that applying in EU Member States under the Roaming Regulation.
A further area where there could be some divergence between the UK and the EU is spectrum management and assignment. Following Brexit, the UK would no longer be subject to Commission decisions and initiatives on the harmonisation of spectrum allocations and use across the EU. It will, however, continue to cooperate with other Member States on some of these issues through membership of other organisations, including the European Conference of Telecommunications and Postal Administrations or CEPT.
- Digital Agenda for Europe
The ambitious targets of the Digital Agenda for Europe, or any other Commission policy for that matter, would no longer apply to the UK. It is unclear whether the UK would continue to apply these targets in a post-Brexit scenario, though it might, for example, give preference to the same or better broadband speed targets for ubiquitous broadband access.
- Longer term divergence
In the longer term, a Brexit is likely to lead to a divergence in regulation between the UK and the rest of the EU. If the UK leaves the EU, the UK Parliament will be free to legislate for the regulation (or de-regulation) of the national telecommunications markets as it wishes. Moreover, Ofcom would no longer be required to notify the Commission of any draft proposals for the regulation of telecommunications markets in the UK. The UK would essentially have a "free hand" in market regulation, provided that it complies with WTO requirements.
Implications of Brexit for telecommunications companies
- UK companies
UK established companies can currently avail of the rights to free movement granted under the Treaty on the Functioning of the European Union ("TFEU"), including the freedom to provide services and freedom of establishment. This means that any entity incorporated in the UK has the right to provide telecommunications services in any other Member State, assuming that it complies with the national law requirements that apply to domestic companies in that Member State. Brexit would remove this right in respect of UK established companies.
Any regulatory divergence between the UK and the EU following Brexit would also have a direct impact on telecommunications service providers in the UK. Divergences could, for example, arise in respect of the regulation of OTT services. The UK may be likely to take a more liberal approach towards these services than the Commission or certain other national regulatory authorities. The UK may also be likely to favour a more pro-investment policy on regulation than certain other Member States.
- EU companies operating in the UK
The same logic applies for companies established in any Member State other than the UK. Such companies would, in the event of a Brexit, no longer have the virtually automatic right under EU law to provide electronic communications services in the UK.
- Non-EU companies operating in the UK
Brexit is also likely to have an important impact on companies from outside of the EU that are considering doing business in the UK and/or the EU. Such companies sometimes choose the UK as a stepping stone or "springboard" into the greater EU-wide market. There are a number of important reasons for this, including language, relative ease of doing business in the UK and the significant size of the UK domestic market.
From a compliance perspective, this strategy can be particularly effective in a regulated environment, such as the market for electronic communications. The harmonisation of telecommunications regulatory regimes across the EU has meant that a new market entrant in the UK will be subject to broadly similar regulatory requirements anywhere in the EU.
Brexit would, for obvious reasons, undermine the rationale for using the UK as a springboard into the greater EU-wide market. This is because of the loss of the EU "passport" to the EU internal market that has been available through establishment in the UK and compliance with EU requirements in the UK as a Member State.
This article is part of our Brexit series