Setting the right framework for future-driven e-communications in Europe

Today the Commission announced the new European Electronic Communications Code, the long-awaited reform to the EU’s regulatory framework for electronic communications, a central pillar of the Digital Single Market. Over the past years, affordable and nearly ubiquitous connectivity has led to the emergence of innovative internet-based services, including new kinds of communications applications such as Skype, Viber, Vox.io, FaceTime, Google Voice or WhatsApp, providing greater choice for Europeans from Prague to Paris.

There are some very promising elements within the reform proposal. By incentivizing both incumbents and new entrants to invest in high-speed connectivity, new access regulation guidelines will help ensure that Europeans can easily reap the benefits of the digital economy. And by seeking to harmonize the management of spectrum frequencies across Europe, the Commission looks to create the right conditions for companies to invest in high speed networks, especially 5G, so users can enjoy the benefits of the Internet of Things. We specifically welcome the proposals on spectrum sharing, small cells and public Wi-Fi.

We also appreciate the distinct treatment of network operators and service providers, which acknowledges the different activities of each and sets regulatory obligations accordingly.

These different activities are complementary. We should not forget that it is consumer demand for applications which drives ever-faster, ever-better connectivity. While communication apps such as Skype and others depend on third-party networks to ensure consumers can access and use their features, they are often used in conjunction with other telecoms services, or for quite different purposes as a recent WIK study revealed. WIK found that while many consumers may initially have started using communication apps to save money, they are not a like-for-like substitute for electronic communication services. Those apps have been disruptive but have changed communication behavior rather than replaced traditional telephony.

Therefore, we believe that many traditional regulations continue to be more relevant for access services (broadband, telephone line rental, etc.) much less relevant to services delivered over the internet. Keeping this distinction could allow for policy-makers and regulators to consider the different technical specificities and ensure that future innovations are not unduly hampered by regulations designed for today’s technology.

Making telephone numbers the trigger for most regulatory obligations (e.g. authorization filings with national regulatory authorities or their European equivalent BEREC, administrative fees and related revenue reporting, emergency calling), without a deeper analysis of the full array of apps and services that use telephone numbers and how each specific regulation applies (or not) to a particular type of service, could result in overregulation, might stifle the EU-based app economy, hurt consumer choice and fail to achieve the intended public policy objectives. Thus, more scrutiny is needed prior to imposing any particular requirement on an app or service that may connect to telephone numbers.

To illustrate this point, some years ago, Skype implemented limited emergency calling solutions in three Member States in Europe, the UK, Finland and Denmark. This has been possible because in those Member States a call can be routed to a single public-safety answering point; thus detailed location-data are not necessary. In other countries, the situation is very different and technical solutions are not solely within the control of app providers. While emergency calling is an important public safety objective that we fully support, it should not be imposed where compliance is not possible, given diverging systems used in EU Member States or available technology. Consumers could be led into believing that their app-based emergency call will work just as well as a landline or mobile emergency call. These risks are particularly prevalent for cross-platform network-independent apps and services.

Ways forward may be found but will require a layered and cross-platform approach that equally relies on device makers, operating system providers, network operators, public safety infrastructure upgrades and communications application providers. We propose that all stakeholders, including the emergency calling centres, come together in a public private partnership to address remaining challenges.

We encourage decision makers in the legislative process to identify applications and services that should be subject to specific regulatory compliance to achieve public policy outcomes for the advantage of European citizens, and to design solutions informed by technological contexts.

Only with the right rules in place we can ensure Europe’s digital economy and society will continue to innovate and benefit from progressive communication platforms.

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John Frank
Vice President for EU Government Affairs

John Frank is Vice President EU Government Affairs and is leading the Microsoft Brussels office. Prior to this role Frank was Vice President and Deputy General Counsel, leading the Digital Trust and Security group which includes the Law Enforcement and National Security team, the Digital Crimes Unit, the Industry Affairs group, and Competition Law, Privacy and Government Contract Compliance teams. Frank joined Microsoft in Paris in August 1994. His responsibilities focused on competition law matters with the European Commission and national governments, software licensing and copyright law and regulatory policy for the Internet. Prior to joining Microsoft, Frank practiced law in San Francisco with Skadden, Arps, Slate, Meagher & Flom. Mr. Frank received his A.B. degree from the Woodrow Wilson School of Public and International Affairs at Princeton University and his J.D. from Columbia Law School.