Review of the Electronic Communications Framework Directives

Tony Shipley, PhoneAbility
August 2008

Further submission to BERR (August 2008)

In January 2008, PhoneAbility prepared comments on proposals from the European Commission for the revision of the set of Directives on Electronic Communications, widely known as the Framework Directives. These comments were submitted to the Department for Business Enterprise and Regulatory Reform (BERR), and are available on this Tiresias website. Since then, BERR has requested inputs from stakeholders on a modified set of proposals that has emerged from the negotiations on the revised Directives. PhoneAbility's further submission follows, in the question and answer format requested by BERR.

PhoneAbility’s earlier response (January 2008) to the Commission proposals for revisions to the Framework Directives is still a valid representation of our views. With respect to BERR’s specific consultation questions, we would submit the following comments.

1. Do you have views on the overall objectives and priorities of the Review including whether it establishes the correct balance between national regulators and the European Institutions. Is there anything else you would have liked to have seen included in the proposals?

PhoneAbility accepts that the overall objectives and priorities are broadly correct and appropriate to the present and emerging markets in electronic communications. We have reservations about the balance between national and central regulation, as we support very strongly the concept of independence for national regulators – meaning independence from control by national Governments and by European Institutions. Our reasons for taking this view will be set out more fully in the response to Question 3, but we are of the opinion that adequate powers are already available to the European Institutions to deal with any Member States that infringe any part of the Directives.

We would have liked to see a more critical review of the provisions for universal service put forward in the EU proposals, and we are concerned at the continued delay and down-grading of the promised Green Paper on universal service issues.

2. What do you think of the increased tendency in these proposals to delegate to the Commission the power to make detailed implementing legislation? These delegated powers are subject to so-called comitology procedures which allow the Member States, the Council and Parliament to exercise a measure of control over the actions of the Commission.

We are concerned at this tendency. In the areas which are of particular interest to PhoneAbility, the Commission has not shown itself as an effective influence and we very much doubt whether it would be in the best interests of disabled people in Europe for more detailed implementing legislation to be centralised. This lack of effect may arise because any attempt at central implementation has to address 27 separate jurisdictions, but even with greater legal powers available to the Commission the practicality must be that the pace of implementation is governed by the slowest to respond. Experience has shown that improved services for disabled people come about because particular administrations are able to lead on specific aspects, with the potential for ‘best practice’ innovations to be copied by others without any commitment for all 27 Member States to subscribe. If this approach seems harsh for those disabled people whose administrations are slow to follow, we would suggest that the answer lies in extended equality and non-discrimination laws at the EU level, so that citizens can demand service provisions that are proper and reasonable in their circumstances.

We are not impressed by comitology procedures. In our view, they are very hard to understand and much valuable time is wasted by playing to the rules with limited effect.

3. Do you agree with the proposal to set up a European Electronic Communications Market Authority (“the Authority”)?

In our previous submission we were undecided about this proposal, largely because in our view insufficient evidence of a need for a central Authority had been put forward. The proposals have now been revised somewhat and, in so doing, the case for the Authority has been much weakened. It now appears that the role of the Authority will be to intervene in a very few circumstances that are at the fringes of present legislative powers and could probably be resolved very simply by other existing mechanisms. To set up an expensive Authority just in case it might be needed to deal with as yet unforeseen problems in a complex developing market seems to be totally contrary to the professed objective of better regulation. We would prefer to see reliance placed upon more flexible approaches, such as an extended role for the European Regulators Group.

As stated above, PhoneAbility strongly supports the concept of independence for national regulators. Our main area of interest is that of services for disabled people, and it is very clear that improvements in these services are dependent as much, if not more, on national circumstances as on the pan-European context. This is because crucial elements of the service delivery are linked to factors which lie within the boundaries of subsidiarity and are not subject to European actions. Funding mechanisms and public service structures vary considerably between Member States, and user needs and priorities are not separable from regional cultures. National initiatives are important, within a European legal framework which enables and encourages them without imposing prescriptive rules. Co-ordination and collaboration between Member States is therefore more necessary and potentially more fruitful than a lowest common factor approach which the Authority might have to follow.

4. Should the Commission have the power to a) veto remedies proposed by national regulators and b) impose its own remedies to address market failures?

The Commission has powers to initiate infringement proceedings against Member States that fail to observe European law, and this may lead to referral to the European Court. We do not see any need to increase these powers. If a proposed remedy would infringe the law, the Commission is able to issue a warning of intended action. If the proposed remedy is within the law, but perhaps not in accordance with best practice, then it is surely a matter for the European Regulators Group or COCOM to pursue. The role of the Commission as guardian of the EU Treaties is unequivocal, but we do not believe that it should be allowed to take powers in excess of that.

5. Should functional separation be available to national regulators as a remedy?

We believe that it should. In our view this is a logical component of liberalisation and an important contributor to the working of the Single Market.

6. What do you think about the Commission’s proposal to further liberalise the allocation of spectrum?

We regard this as a positive step provided that there is protection for certain non-geographical spectrum uses, for example radio microphones and radio links used with hearing aids and other medical devices. Spectrum for these needs to be allocated by international agreement.

7. Is the proposal to give the Authority and the Commission powers to allocate numbers and spectrum for pan-European services necessary and will it achieve the desired objective?

There does appear to be some doubt as to what pan-European services might be. We regard the Authority as superfluous and we wonder whether the Commission is equipped to allocate numbers or spectrum, so if there is any need to reserve either for pan-European services this can surely be done by placing an appropriate obligation within the existing mechanisms.

8. How do you think the Commission’s consumer proposals are appropriate?

Any proposals that make for a better informed consumer base are to be welcomed. While informed choice will be the preferred market driver for most users, disabled people will benefit less from this because their choices are limited. The previously stated objective of giving a degree of choice to users who are dependent upon the operation of universal service is as far distant as ever and PhoneAbility will look for any moves in this direction in the promised communication on universal service. The proposals on eAccessibility seem to us to be empty ones. Bringing some aspects of terminal equipment within the scope of the Framework Directives can do very little (while the Single Market for this equipment is determined by the RTTE Directive) unless some form of regulated and subsidised provision can be introduced through universal service, and there is as yet no hint of this. The proposals relating to ‘112’ access miss the point, as we have commented previously. The problem is not in getting access to the 112 operator, but in how the call is then handled when the caller cannot hold a voice conversation. As that is a matter which falls into the subsidiarity area, it is difficult to see how the proposals can improve the situation.

9. Is the proposal to impose and proactively enforce minimum security standards on e-communications suppliers the right way to address concerns about resilience and security?

This is a critical area which in our view needs further detailed consideration. User confidence in the security and integrity of the networks is essential to the ordered development of services, but the matter is complex and not all parameters lie within the control of suppliers. The measures need to be proportionate and seen to be so. We would be especially concerned if security measures were to hamper the provision of particular services for disabled people, in which the intrusion of a third party (as in a relay service) is an unavoidable feature.

10. What do you consider would be at risk if we combined ENISA and the Communications Authority?

We have already commented that we do not see a need for the Authority. Bringing in other bodies in order to create the critical mass that might justify its existence would risk added expense and encourage a search for other functions to add to its portfolio.

11. In what circumstances do you consider that providers of electronic communications services ought to notify customers of a significant breach of security?

We consider that service providers should notify customers of any breach of security that might compromise them

12. Do you agree that all users of a service offering outgoing calls should be able to access the emergency services?

In principle, yes. PhoneAbility is strongly of the opinion that users must be able to access the emergency services using the service and the equipment with which they are familiar. In the case of carrier pre-selection services, if the selected carrier does not provide access the call must default automatically to the network of the line provider. We accept that there will be instances where this is not possible, in particular peer-to-peer arrangements between users of personal computers with enabling software (but perhaps this does not constitute ‘a service offering outgoing calls’). We would expect that any commercial package offering outgoing telephone calls should have an obligation to route 999/112 calls with the necessary caller ID, either over its own system or on a default network, and we would hold that failure to do this would mean that it was not fit for purpose.

13. Are the privacy provisions appropriately future-proofed?

PhoneAbility is not competent to give a view on this point.

14. What do you think about the new provisions to help disabled people?

We regard these as inadequate and misleading. They are largely empty words that cannot be translated into action. Only the requirement to monitor and report on quality of service parameters has any real value, and even then it can only be to shame under-performing organisations. PhoneAbility is looking to radical new proposals under the heading of ‘Universal Service and Users’ Rights’ and we are disappointed to find that even this undertaking seems to be postponed and devalued.

15. Do you have any comments about anything else in the proposals?

No, except to re-iterate our disappointment that the promised in-depth discussion on the future of universal service appears to have been abandoned. We would have welcomed the opportunity to re-examine the boundaries between those services which can be delivered through the universal service mechanisms (by specific designation but with the potential for external subsidy) and those which ought to be mandated as constituent parts of the set of basic users’ rights, to be made available by all relevant operators. It is our intention to continue to press this matter, but we fear that the promised communication on universal service may offer little scope to engage in constructive debate.