Précis - The European telecoms regulator, BEREC, has issued draft guidance which aims to assist national regulatory authorities, such as Ofcom, in tackling fraud and misuse within the industry.  The report focuses on harmonising procedures for tackling fraud and misuse, for which national approaches tend to differ.

BEREC issues fresh advice on how Ofcom and other regulators can help to prevent fraud and misuse on the telecoms industry

What?  On 5 October, the Body of European Regulators for Electronic Communications ("BEREC") published for consultation a draft report in relation to Article 28(2) of the Universal Services Directive ("USD").  This is their initial step towards publishing a set of guidelines which clarifies and defines the relevant procedures for collaboration between National Regulatory Authorities ("NRA"s) on the issue of fraud or misuse in electronic communications.  The guidelines are also anticipated to include provisions in relation to how BEREC can assist NRAs on fraud or misuse of telephone numbers - BEREC are required to provide such assistance under Article 3.1(l) of Regulation (EC) No 1211/2009.

So What?  Article 28(2) requires Member States to ensure that NRAs have the ability "to require undertakings providing public communications networks and/or publicly available electronic communications services to block, on a case by case basis, access to numbers or services where this is justified by reasons of fraud or misuse" and in such cases to require providers of electronic communications services to "withhold relevant interconnection or other services revenues".

BEREC has acknowledged that Member States have not been consistent in their approaches to the concepts of fraud and misuse.  This is thought to be due to the lack of a definition for either concept in the USD.  BEREC noted that most Member States have implemented Article 28(2) into national law by a literal transcription of the USD text.  BEREC has tried to shed some light on this issue, by providing a number of examples of practices which they consider to involve fraud or misuse.  These examples include practices such as the use of numbering intended for an end-user for the provision of services not included in the national numbering plan of the relevant jurisdiction (e.g. auto-dialling), artificial inflation of call traffic (e.g. scams designed to encourage consumers to call or text back) and the use of a number by a third party to whom the number was not allocated, without the consent of the party to whom it was allocated (e.g. phone hijacking).

The key tools that regulators can utilise in tackling fraud and misuse, BEREC noted, include blocking numbers, and withholding interconnections and other service revenues.  These measures can reduce the financial exposure of consumers and operators and prevent revenue from being generated by the perpetrators of the relevant fraud or misuse.

BEREC has also confirmed that even though the current guidelines aim to assist with cross-border cases, Article 28(2) itself is not limited to cross border scenarios.  BEREC has called for NRAs to orchestrate and coordinate the regulatory activity in relation to telecoms fraud and misuse.  In addition, greater cooperation between relevant authorities, both on a national and cross-border level, will help to identify perpetrators of fraud and misuse more efficiently and increase the potential for successful prosecutions.

A copy of BEREC's full consultation can be found here.