Welcome to the fifth edition of our Communications & Competition newsletter – a place where we collate the most interesting developments for the communications sector and latest key competition law developments.

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This Summer has been a busy one for regulators, industry, and the courts. With the prospect of new EU digital rules entering into force bringing about major change, there’s growing concern among Big Tech, with the possibility of a legal challenge looming.

In the UK, major developments include Cityfibre losing its appeal against Ofcom’s decision to approve Openreach’s Equinox wholesale broadband offer and Compare the Market’s £17.9 million fine being set aside by the CAT for a competition law infringement. The UK government has also published its much anticipated response to their public consultation on new UK telecoms security regulations and Code of Practice requirements, making a number of changes in response to views received.

There’s also been activity in the satellite services space, with both the EU Commission and the CMA recently confirming they will assess the proposed acquisition of UK provider Inmarsat by its US rival Viasat under competition law rules. Both these developments and those listed below make for an interesting Autumn ahead. We’ll be monitoring this to keep you up to speed each month.

European Electronics Communication Code (EECC) Tracker

2021 saw a revamp of the rules applicable to electronic communications networks and services owing to the transposition of the EEEC into national laws. These changes have continued to be implemented in 2022.

We continue to see first-hand that the approach taken to implementation varies across the EU/EEA and in the UK, meaning that providers can’t rely on uniformity of rules. To assist, our European Electronic Communications Code tracker will help you navigate the status of EECC implementation. The tracker provides an at-a-glance view of implementation as well as a detailed summary of the current status for each territory.

Key recent developments include the fact that the EECC has now been implemented in Portugal and Latvia. Some of Latvia’s new provisions are already in force and Portugal’s new EECC provisions will enter into force in November. As implementation progresses, we’re also monitoring for enforcement decisions – this will be another crucial indicator of the impact of the rules in practice.

This is a new section of our newsletter, and we’d welcome feedback on what key focus topics might be of interest to you going forward. Please do let us know.

This Autumn, we’re excited to bring you a monthly series of insightful content from our experts and guest speakers from across the industry.

Starting with an update on all things IoT regulation, we’ll also be covering topics like telecoms security and key regulatory watch-out areas for 2023. There’s no need to register – all content will be available on-demand as videos or podcasts so you can keep up to date when and how suits you.

Our first session on IoT regulation will be sent directly to our newsletter subscribers first, before being published on our website and across our social channels. If you’ve got any burning questions or topics you’d like us to discuss, please get in touch. We can’t promise to include them all, but we’ll use our expertise and experience of the regulatory and competition landscape to provide an informative and interesting 30 minutes. If you have any feedback on other topics you would be interested in hearing more about, please let us know.

Growing concern amongst Big Tech on new EU digital rules – possible legal challenge ahead

Concerns are growing amongst Big Tech players in relation to new EU digital rules. An upcoming legal challenge is rumoured to be possible, in particular in relation to the new EU Digital Markets Act. To find out more, click here.

EU Commission to assess US Viasat’s proposed acquisition of US satellite provider Inmarsat

The EU Commission has accepted the requests of several Member States to assess the proposed acquisition of UK-based Inmarsat by its US rival Viasat (given the cross-border effects). Both players operate their own satellite networks and are active in providing global satellite communication services. To find out more, click here.

Cityfibre loses CAT appeal on Equinox offer

On 15 July, the CAT published its judgment rejecting Cityfibre’s appeal against Ofcom’s decision to approve Openreach’s Equinox wholesale broadband offer in September 2021. The CAT warned that a court should be cautious about interfering with a consultation process carried out by an expert regulator. To find out more, click here.

Ofcom publishes update on switching off the UK’s 3G mobile networks

On 3 August 2022, Ofcom published a helpful “what you need to know” guide on the latest developments relating to switching off the UK’s 3G Mobile networks. To find out more, click here.

Ofcom investigation decides Sky is obliged to send end-of-contract notifications to its pay TV services customers

On 19 August, Ofcom published its final decision on whether Sky had complied with the requirement to issue end-of-contract notifications (ECN) to certain pay-TV customers (under Ofcom General Conditions C1.21-C1.29 (formerly C1.10 to C1.15). Ofcom has found that by failing to send these notifications to its pay TV customers, Sky breached, and continues to breach these requirements. Sky has been asked to take all necessary steps to ensure they comply with the ECN requirements concerned. To find out more, click here.

Ofcom publishes latest Affordability of Communications Tracker

On 8 August 2022, Ofcom published its latest update on the affordability of UK communications services. To find out more, click here.

Government publishes response to consultation on proposals for new telecoms security regulations and code of practice 

On 30 August 2022, DCMS published the government’s response to views on the March 2022 public consultation on drafts of the Regulations (known as the “Electronic Communications (Security) Measures Regulations”) and the Code of Practice. Several changes have been made to the drafts to ensure they are appropriate and proportionate for the planned October 2022 launch of the network framework. Key changes have been made to security measures requirements on national resilience, legacy networks, and supply chain requirements. Timings for implementing the new requirements have also been delayed. To find out more, click here.

New Private Members Bill proposing to tackle concerns around recent increase in rollout of UK telecoms infrastructure

A new “Telecommunications Infrastructure (Consultation) Bill” has been put forward by MPs which proposes mandatory local consultation in relation to the installation of telecommunications infrastructure in residential areas and for connected purposes. A second reading of the Bill is planned for 18 November. To find out more, click here.

Digital Regulation Cooperation Forum (DRCF) publishes report on roundtable on end-to-end encryption (E2EE)

This report, published on 28 July 2022 provides a summary of the discussions held during the roundtable. The event brought together voices from the digital technology industry, academia, civil society and the legal profession to help guide future joint regulatory work. The objectives were to understand: (i) the benefits and risks of E2EE for online services and their users; and (ii) its implications for digital regulation. To find out more about the key themes discussed and the report, click here.

CMA opens an investigation into the proposed acquisition by Viasat of UK satellite provider Inmarsat

The CMA has will assess the proposed acquisition of Inmarsat by Viasat under the Enterprise Act 2002. Concerns have been raised regarding competition in the market for the supply of satellite in-flight connectivity services. The CMA will consider whether the merger is likely to cause substantial effects on any of the UK’s markets for goods or services. To find out more, click here.

CAT judgment upholds Compare The Market’s appeal against a CMA “most favoured nation” infringement decision, annulling a £17.9 million fine

The Competition Appeal Tribunal (CAT) has handed down its judgment in the appeal against the decision of the CMA, in which the CMA fined Compare The Market for breach of Article 101 of the TFEU and the Chapter I prohibition of the Competition Act 1998. The CAT found that the CMA had made material errors in its ruling and therefore set aside the initial ruling annulling a fine of £17.9m. For further information, click here.

CMA consults on proposal not to make a market investigation reference in relation to its market study into music and music streaming

On 26 July 2022, the CMA published an update paper on its market study into music and music streaming, setting out several of their initial findings and a proposal not to make a market investigation (inviting comments by 19 August 2022). The CMA’s initial findings noted, inter alia, that listeners have access to a huge choice of music for a fixed monthly subscription fee; such fees have fallen in real terms; and that digitisation has made it easier than ever for many more artists to record and share music and find an audience. The CMA also noted that on balance, its initial analysis suggested that this market was delivering good outcomes for consumers. The CMA’s market study works continues. To find out more, click here.

Law Commission consults on new proposals to reform law relating to digital assets

The Law Commission is consulting on new proposals that aim to deliver wider recognition and legal protections for digital assets. The Government has asked the Commission to review the law in this space, to ensure such assets can be accommodated as they continue to evolve and expand.  The deadline for responses to the consultation is 4 November 2022. To find out more, click here.

Non-terrestrial 5G mobile networks becoming reality

Demand for mobile services isn’t slowing down, with the estimated global market value for 5G infrastructure rising despite the supply issues for critical 5G network equipment that MNO’s have been facing. Advances in wireless technology, miniaturisation and satellite economics have meant that satellite-based 5G non-terrestrial mobile networks (5G NTN) are now a real possibility. These offerings could be used to reach remote areas, or to provide back-up for terrestrial networks. For a detailed look at 5G NTN and its potential impacts and applications, click here.

Open RAN key to network infrastructure supply chain resilience

OpenRAN presents opportunities to both address supply chain resilience within telecoms infrastructure and to enable 5G’s full potential. Its open approach will allow operators to mix and match their solutions from different vendors by using software on COTS hardware, allowing them to create bespoke systems that suit their specific needs. While it’s still early days for Open RAN, mass adoption, agreed common standards and quality COTS hardware is key to ensuring its success. For further information on Open RAN and its impacts on network architecture, click here.

Remaining profitable during high inflation through commercial contract arrangements

Rising inflation throughout the globe is affecting business across all sectors of the economy. Telecoms providers are particularly concerned, with rises hitting as they are investing in network infrastructure and capacity to meet the needs of demand growth. Suppliers and customers can, however, continue to innovate and remain profitable despite the inflation rises by learning from operators accustomed to high inflation environments. This is namely done through their commercial contractual arrangements. For further information and examples, click here.

UK-US bilateral data access agreement to come into force

The Home Office has announced that the UK-US Data Access Agreement (DAA) is set to come into force on 3 October 2022. The DAA will bilaterally allow UK and US law enforcement to directly request data held by telecommunications providers in the other party’s jurisdiction for the exclusive purpose of preventing, detecting, investigating and prosecuting serious crimes. For further information on the DAA, click here.

Ofcom consultation on annual spectrum licence fees

Ofcom is consulting on its proposed annual licence fees for 10 GHz, 28 GHz and 32 GHz spectrum for 21 February 2023 onwards. For further information on Ofcom’s proposal, click here.

Data centres and rising energy prices – UK Government consults on energy proposals

The UK government (BEIS) currently has two consultations open on energy. The first focuses on electricity market arrangements (to identify reforms needed to transition to a decarbonised, cost effective and secure electricity system. The second seeks views on the Government’s exemption scheme for Energy Intensive Industries from the indirect costs of funding the Contracts for Difference (CfD), Renewables Obligation (RO) and small-scale Feed-in Tariffs (FIT) schemes (“Exemption Scheme” or “Scheme”). BEIS is looking into whether there is a rationale for increasing the subsidy level of the current scheme to address the increased risk of carbon leakage and the higher costs of industrial electricity prices. Responses are due by 16 Sept 2022. To find out more, click here.

DCMS publishes a Prior Information Notice on Gigabit Infrastructure Subsidy Programme – Cross-Regional Framework (Type C)

On 18 August, DCMS issued a Prior Info Notice (PIN) – on the Gigabit Infrastructure Subsidy Programme – Cross-Regional Framework (Type C). This programme is designed to support the build of gigabit-capable broadband infrastructure in UK areas which are unlikely to attract commercial investment for gigabit-capable broadband infrastructure within a reasonable timeframe, if at all (known as the “final 20%”). Suppliers interested in engaging with BDUK to discuss the intention for the Framework and to access draft contract terms and conditions have been asked to get in touch with DCMS by 1 September 2022. To find out more, click here.