Cost 219ter
Proceedings of
Extending Horizons
16th January 2007
Conference organised by COST 219ter
Accessibility to Next Generation Networks
DR JOHN GILL: Good afternoon, please take your seats. Our next speaker is Mr Tony Shipley who is one of the two UK members of COST 219ter, he is also the Vice Chairman of PhoneAbility, and the author of quite a number of publications related to legislation and regulation as applied to telecommunications. So I will ask Mr Shipley to take the floor and talk to us about what the regulators should be doing. Thank you.
MR TONY SHIPLEY: Good afternoon ladies and gentlemen, what should the regulators be doing? Well now, for a start achieving the necessary degree of accessibility to next generation networks is likely to require some regulatory intervention. This is a necessity because the market forces that operate in a freely competitive market take little account of users' needs whenever those needs depart from whatever happens to lie in the mainstream. The people on the fringe are poorly served. The questions that have to be addressed are those of how appropriate regulations should be framed, and what sort of legislative mechanisms are required to carry them. Therefore, when we ask what the regulators should be doing, we are looking at a framework. And within the European Union at least, that is a framework that embraces both the harmonised central legislation and the additional national regulatory powers of the Member States. In other words, we are looking at not just the Community Directives and their implementation but also the actions which the European nations can effect using their own powers in what is, in the EU, called subsidiarity. These questions are linked to another issue which COST 219ter has been looking at, an issue which was expanded on in the book which was launched today as Patrick Roe has been demonstrating to you.
That issue is the matter of more regulation or less, and it is crucial to the protection of Users' Rights in this field of electronic communications. Now, most of the EU legislation which currently exists in this area is in the form of Single Market Directives. That's to say directives which are designed to ensure that the single market within the community functions smoothly and fairly, allowing the free movement of goods and services between Member States, without barriers to trade whether those barriers be tariff or non-tariff barriers. And further, prohibiting anti-competitive practices especially by large organisations which might possess enough market power to squeeze out competitors. In the electronic communications sector, the primary purpose of the Single Market Directives has been to regulate the activities of the former state monopolies which owned, and sometimes still own, the telecommunications infrastructure and control all access to it.
Without such regulation liberalisation of telecommunications and the growth of free market competition would have been impossible. From this background, it will be clear that the set of directives which provide the framework for regulation in this sector are primarily economic directives. They govern the single market economy of this sector, and prevent those organisations which have significant market power from using it unfairly to disadvantage potential competitors. If there had been a freely competitive market in this sector there would have been no need for regulation in this form at any rate, and that is in line with the fundamental principle, certainly in the EU, that if the markets are working properly don't regulate them.
But there are other reasons, reasons other than economic ones, why regulation may be needed. The pragmatic case is that if the economic case is the primary driver for regulation then these other instances can be incorporated within its rules. That much is straightforward, and few people would argue with it. But what happens if and when the economic case ceases to be important, and the economic regulation is no longer needed. Alternatively, what happens if emerging technologies create new and probably global markets which are fully competitive from the outset. How then is the non-economic regulation to be applied? Two of these reasons, and this is not exclusive of the other reasons for needing regulation, in the electronic communications sector are the protection and management of the radio spectrum, and the protection of consumer interests.
Radio spectrum management is essential to the safe and effective use of transmitting equipment, and without it mobile communication and broadcasting would be chaotic. Emergency services would be put at risk. There's no need for us to feel concern on this issue because the risks are so well recognised that the regulatory structure is bound to be maintained. If the RTTE directive that you have heard mentioned before, which covers terminal equipment, were ever to be diluted in its scope, we could be quite sure that the radio spectrum and the interference obligations that it contains would continue to be applied. But there's no such certainty with consumer protection.
We in COST 219 feel that there's cause for concern here, because there are aspects of consumer protection which are essential in regulatory terms if access to electronic communications and services is to be maintained and improved. There is of course general consumer protection legislation but that doesn't go far enough. In this sector, the consumer protection is largely contained in the directive on Universal Service and Users' Rights (Inma mentioned the Users' Rights bit). When that directive is referred to, people usually say the Universal Service Directive. The shortened common title is unfortunate as it leaves inexperienced readers to think the directive is only about universal service. The all important chapter four of the directive on end users' interests and rights tends to be forgotten. And in fact there's a very strong case for listing under the users' rights those features which make networks accessible to disabled and elderly people rather than have them under the more limited universal service heading.
As I have said the sector-specific obligations set out in this Universal Service Directive are additional to the general legislation on consumer protection. But it's important to note that even these obligations in the Universal Service Directive apply only to those parts of the market which lie within the stated scope of the directive. Also, the obligations are addressed to Member States, and some discretion is allowed over the manner of implementation. So some of the provisions are not fully obligatory, as they are enabling provisions which allow Member States to apply regulation for specific purposes, without contravening the rules of the single market.
But the result is that there's no clear definition of what disabled and elderly users have a right to expect across the European Community. Another drawback inherent in the Universal Service Directive needs to be resolved if consumer interests are to be given proper regard. Its stated scope is far, far smaller than the electronic communications area in general. Furthermore it is rooted in fixed line PSTN concepts. Mobile services are scarcely touched and newer offerings are ignored. I will return to this point shortly. Let us note for the moment this is linked to a concept of relevant markets,that is, those market sectors for which economic regulation is agreed to be needed.
Now universal service in the narrow sense may or may not be associated with the way that the market performs, but this argument cannot possibly extend to Users' Rights. So what becomes of these when economic regulation is not needed? The impression that this directive is about universal service, and that only, does a great disservice. Let me restate the issues.
Regulation needs a formal framework to give it legality. It may be convenient to use economic legislation such as the Single Market Directives in order to provide that framework, but problems arise if the economic case ceases to apply or new types of service come into being where the economic case is not considered necessary. Two examples will make the point clear, I hope. In the present round of reviews of the sector directives it has been proposed that directory services should be dropped from their scope. At first sight this is logical enough. Liberalisation has led to a large number of suppliers offering directory services of all kinds. The market is freely competitive so why continue to regulate it? Why require the national regulatory bodies to devote resources to monitoring this market and applying specific regulation, when all of the unfair trade practices that might occur can be dealt with by other general legislation that applies to traders of all kinds? The problem would be that there are specific requirements in the directive to protect the interests of disabled and elderly users, and these appear only in the Universal Service Directive.
If this market were to be removed from the scope of that directive these requirements could no longer be enforced unless some other legislation gave them legality. General legislation on consumer protection is not enough. It does not go into detail on market-specific issues.
A second example. Many organisations including COST 219 have been pressing for the scope of the Universal Service Directive to be extended to include, for example, all public mobile services, broadband, and newer offerings, particularly Voice over IP. This has been resisted on the grounds that the roll out of such services across 15 Member States, as it then was, was uneven. Those Member States which did not have such services fully operating would not support, so it was said, the imposition of universal service obligations which would for them be premature. If it would be difficult to get agreement to such extensions within 15 Member States then it must be doubly difficult to do so with 25, and now with 27. The practicality of this argument should be considered, but does this mean that the Universal Service Directive and its chapter on Users' Rights can never be extended in scope? As much of the content of this directive is based upon fixed line PSTN practice, are we to have to endure a concept of consumers' rights that is forever derived from old history?
There's a way around this. COST 219 is arguing for an extension for the subsidiary powers of the Member States, so they can introduce consumer protection regulation nationally In order to deal with problems as they arise with newer types of service. National regulation of this kind could be coordinated through community mechanisms such as COCOM so it would not breach the principles of the single market. At the same time it would not affect those Member States who were not yet ready.
Linked to this would be redrafting of the Users' Rights chapter of the Universal Service Directive so that it formed a separate piece of horizontal legislation, avoiding specific time-limited detail and concentrating on the principles on which any or all types of electronic communication service should be offered to the public. We should not imagine that this would be easy to draft but the commission's promise of a Green Paper, mentioned by Inma, a Green Paper later this year to initiate a wide-ranging discussion, is a magnificent opportunity.
As I said it will not be easy. Can we, all of us, persuade the Commission and the European Community that there's a need and a place for horizontal legislation that establishes Users' Rights in this sector? That defines the principles that should be applied to all offerings of electronic communication services to the public? Is it possible to set out such principles so that they have meaning regardless of the precise technological platforms which are being used?
Is it feasible to draft obligatory requirements that are fair to all users of publicly available services whether they, those users, are disadvantaged, disabled, elderly, impoverished or not, and without impeding essential service growth and technological innovation? Can we define e-accessibility in ways that can be understood by providers, users and regulators? I suggest only time will tell.
I started off by asking what the regulators should be doing, and what is very clear is they cannot do all this by themselves. If we as consumers want to enjoy e-inclusion then we have a major part to play in bringing it about. I will leave you with that thought. Thank you.
DR JOHN GILL: Are there any questions, any regulators who want to object? Does the European Commission have any views on it? Any questions? The microphone please...
NEW SPEAKER: Tony, I was a bit puzzled by the option that you gave, or which you tried to promote as a COST option, for two reasons. I would like to get some explanation from you, if possible.
First of all, isn’t it that this is the introduction of the possibility of defined user-rights at national level, a kind of de facto national anti-discrimination legislation? I mean, in the UK the DDA has defined some rights for people. I don’t think, particularly ICT and telecommunications is excluded. I don’t know whether it is explicit enough. That would be the question. I don’t understand why you would need a kind of separate legal basis to do that.
Second of all, I’m sure some countries might benefit from that. What would be the repercussions for those countries lagging behind and need a push? Europe has been providing in many areas the support and the push to those countries – for example, by comparing or providing common rules for all the countries without impeding some of them advancing, those ones that wanted to go beyond. It had set at least a minimum set of requirements.
How would these affect European cohesion, general accessibility and mobility of people and accessibility across member states? Maybe too many questions in one! Sorry for that. You shouldn’t have given me the microphone!
MR TONY SHIPLEY: Thank you. If we had an anti-discrimination directive across the whole of the EU, as you have mentioned, and the European Disability Forum would like to see, then a lot of these problems would, I think, go away. We have the Disability Discrimination Act in the UK. As a result we, being parochial about it, can feel quite relaxed if directory services are dropped from the universal service directive, because the DDA will pick up the requirements. Because the requirements of the universal service directive in relation to directories are currently there, in DDA terms they are obviously reasonable adjustments which the providers of the services can make. So the legal basis would be continued under that different legislation.
If any of the major players decided to pull out of the directories market altogether, we would have a difficult situation to face. But I don’t think BT is planning to do that. I had better not pursue that particular line!
Now you yourself pointed out that, to get 27 member states to agree in an area where it has to be unanimity, and not qualified majority voting, is quite a hurdle. What I’m really suggesting, with turning the users’ rights part of the universal service directive into a horizontal anti-discrimination piece of legislation, is why don’t we see if we can just do it for the electronic communications sector? It stands perhaps a better chance than anti-discrimination directives covering all areas. I think that in a sense that answers your question.
DR JOHN GILL: Thank you very much, Tony. We move on to our final speaker of the day, for the second time round, which is Professor Patrick Roe, from COST 219ter. He will carefully draw the strands together and show the way for the future.
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