The regulatory framework for telecoms networks and services in the UK is primarily established under the Communications Act 2003. This piece of primary legislation gives effect to a number of EU Directives originally adopted to establish a framework for the regulation of communications-related activities across Europe. In the media sector, regulation of television services also derives, in part, from applicable European law, in particular from the Audiovisual Media Services Directive which was implemented into law in the UK by the Broadcasting Acts 1990 and 1996 and the Communications Act 2003.
Post-Brexit, these primary pieces of legislation will be likely to remain in force at least for the short-term, thus retaining the regulatory status quo. In such highly regulated and complex sectors, this would certainly be preferable to any repeal of the legislation. However, the UK Government would have the scope to repeal or amend these laws over time without being limited by the requirements of the European Directives, subject to any other international commitments.
The telecoms sector is, however, also subject to directly applicable EU Regulations in a couple of key areas, being roaming and net neutrality. The 2015 Roaming and Open Internet Regulation codified the principle of net neutrality (subject to reasonable traffic management) and will abolish roaming charges from June 2017. The 2015 Regulation applies to countries in the EEA and the effect of Brexit on the Regulation will depend in part on the future relationship between the UK and the EU. If the UK were no longer part of the EEA as envisaged in the Government’s current plan for Brexit, post-Brexit the 2015 Regulation will fall away, although the Great Repeal Bill could result in its being adopted as UK legislation. Such adoption alone would not oblige EU mobile operators to comply with the anticipated reciprocal caps on wholesale roaming charges in respect of UK mobile operators. If the 2015 Regulation falls away and is not adopted as UK law, in relation to roaming, Brexit could leave UK consumers travelling to Europe subject to higher roaming charges (and vice versa) as the regime will be dependent upon individual roaming agreements negotiated between mobile operators, rather than regulation – any unregulated, commercially agreed wholesale rate increase by UK operators is likely to be reciprocated by their counterparts elsewhere in the EU, which in turn is likely to affect retail pricing in those jurisdictions. Such a scenario, however, would not seem to align with the Government’s intention in its White Paper to focus on ensuring that “UK telecoms companies can continue to trade as freely and competitively as possible with the EU and let European companies do the same in the UK”.
At a time when regulation is moving towards greater harmonisation at the European level, with proposals such as the Digital Single Market seeking to remove any obstacles to a single European digital market, any such change at a UK level will lead to uncertainty for operators as to how they will be regulated across Europe. This in turn could have a big impact on consumers at the retail level, something which it is likely the UK Government and the EU will be keen to avoid.
In the media sector, the Audiovisual Media Services Directive enshrined the so-called country of origin principle whereby, as long as broadcasters are licensed and regulated in one Member State, they may freely transmit into other Member States without the need for additional licences or compliance with additional regulation. When the UK leaves the EU, broadcasters could lose the benefit of this principle, although the Government will still be bound by its other international commitments, such as the Convention on Transfrontier Television. This could mean that UK-licensed broadcasters will no longer be guaranteed freedom of retransmission in other Member States and may be required to comply with additional regulation in at least one of the Member States in which they are active. The Government has, however, acknowledged in its White Paper that the UK is currently the EU’s biggest broadcasting hub and that in the course of Brexit negotiations the Government will focus on ensuring the ability to trade as freely as possible with the EU as well as “supporting the continued growth of the UK’s broadcasting sector”.