Insights Communications & Competition newsletter – May 2022

Welcome to the second edition of our Communications & Competition newsletter – a place where we collate the most interesting developments for the communications sector.

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New EU Roaming Regulation

The EU’s current Roaming Regulation (531/2012/EU) is set to expire on 30 June 2022. On 4 April 2022 the European Council followed the European Parliament and approved the extension of the roam like at home scheme rules until 2032. This means that people may be able to continue to make calls, text and browse the web while travelling in other EU countries at no extra cost. The revised roaming regulation adjusts maximum wholesale prices to ensure that providing retail roaming services at domestic prices is sustainable for operators throughout the EU. It will also increase transparency for services that may be subject to extra cost and protect customers from bill shocks resulting from inadvertent roaming on non-terrestrial mobile networks when on ferries or aeroplanes. Fair use policy measures designed to prevent permanent roaming will stay in place and measures to ensure a good customer experience in terms of quality of service and access to emergency services (including for special needs) have been included. The new roaming rules will enter into force on 1 July 2022. To find out more, please see here.

European Council and Parliament reach provisional agreement on Digital Services Act (DSA)

On 23 April 2022, the EU Council and European Parliament reached a provisional political agreement on a new EU Digital Services Act (DSA). The DSA has been described as a “world first” in the field of digital regulation in light of the nature of the actors regulated and the supervision involved. The new Act follows the principle that what is illegal offline must also be illegal online. It aims to protect the digital space against the spread of illegal content, and to ensure the protection of users’ fundamental rights. Measures include a new obligation for very large digital platforms and services to analyse systemic risks they create and to carry out risk reduction analysis. Such analysis must be carried out every year and will enable continuous monitoring aimed at reducing risks associated with areas such as dissemination of illegal content; and the manipulation of services having an impact on democratic processes and public security. For more details, please see our recent update and DSA Hub to help you easily stay up to date with all of the latest news and navigate the potential impact on your business.

New EU Digital Markets Act (DMA) also provisionally agreed: new rules to help ensure fair competition and more choice for users

The EU Parliament and Council has also agreed on a provisional text for a new DMA. This happened on 24 March 2022, introducing new rules to limit the market power of big online platforms, ban certain large platform “gatekeeper” practices and enable the EU Commission to carry out market investigations and sanction non-compliant behaviour. Measures are targeted at large companies providing “core platform services” which are most prone to unfair business practices, such as social networks or search engines, with a market capitalisation of at least 75 billion euro or an annual turnover of 7.5 billion. To qualify as “gatekeepers”, they must provide services such as browsers, messengers or social media and have at least 45 million monthly end users in the EU and 10,000 annual business users. The provisional text requires inter alia i) the largest messaging services (such as Whatsapp, Facebook Messenger or iMessage) to open up and interoperate with smaller messaging platforms when requested to (to give users of small or big platforms more choice and the ability to exchange messages, send files or make video calls across messaging apps); and ii) “gatekeepers” to allow users to freely choose their browser, virtual assistants or search engines. To enforce measures in practice, the EU Commission will have powers to impose fines of up to 10% of a gatekeeper’s total worldwide turnover in the preceding financial year, and 20% in the case of repeated infringements. For systematic infringements, the Commission will also be able to ban them from acquiring other companies for a certain time. To find out more, click here.

International Trade Remedies – New UK investigations into imports of fibre optic cables from China

On 26 April, the UK’s Trade Remedies Authority (TRA) opened two new investigations into imports of fibre optic cables from the People’s Republic of China. The cables concerned are used in the delivery of broadband services to homes and businesses. The first investigation is focused on anti-dumping – examining whether imports of these products are being dumped in the UK at prices below what they would sell for in their home country. A second, separate investigation will determine whether the Chinese imports entering the UK market are also benefiting from subsidies which lower their production costs. The investigations will also consider whether these imports are damaging the UK industry for fibre optic cables. To find out more, please see here.

Ofcom publishes its Annual Work Plan for 2022/23 

On 25 March 2022, Ofcom published its final plan of work for 2022/23. Key work areas for the coming year include investment in strong, secure networks; getting everyone connected; ensuring fairness for customers; enabling wireless services in the broader economy (i.e., managing the UK’s spectrum for the benefit of everyone in the UK); supporting and developing UK media; serving and protecting audiences; and establishing regulation of online safety (as Ofcom prepares for its new regulatory responsibilities as the Online Safety Bill proceeds through Parliament). To find out more detail on this, please click here.

Ofcom publishes Spectrum Roadmap Discussion Document and invites feedback

On 31 March 2022, Ofcom published its first Spectrum Roadmap which sets out how the regulator is preparing to ensure that everyone in the UK can benefit from the rapid advances in cutting-edge wireless technology. As radio spectrum is a finite and important resource of invisible waves, it needs to be carefully managed so it can continue to deliver the wireless services we all need. As new services emerge, demand for spectrum is growing – so Ofcom is taking a strategic approach to ensure that these innovative new technologies can be embraced alongside existing services. Ofcom’s new roadmap contains various focus areas to ensure it delivers the Spectrum Management strategy it set out in July 2021. Ofcom’s publication also explains how spectrum is used today and highlights some of the key market and technological trends Ofcom has considered in developing its future programme of work. Ofcom proposes to focus on i) network evolution and convergence; ii) accelerating innovation and spectrum sharing; and iii) better data for improved spectrum management. Those interested are invited to provide feedback on Ofcom’s Roadmap by 20 May 2022. For find out more, click here.

Ofcom consults on its New Space Spectrum Strategy

On 15 March 2022, Ofcom published a Consultation on its news Space Spectrum Strategy, which sets out Ofcom’s priorities for helping the space sector (which is rapidly expanding) deliver more services in the coming years to people and business, while making sure it uses spectrum efficiently. A key focus for Ofcom is supporting the growing use of cutting-edge satellite technology to offer innovative services for people and businesses. Operators such as OneWeb and SpaceX are deploying large numbers of new non-geostationary orbit (NGSO) satellites which can provide broadband to homes and businesses in remote locations – so Ofcom’s strategy particularly focuses on the opportunities and challenges raised by NGSO satellite communication systems – including spectrum management challenges, helping ensure Earth observation satellites (which provide benefits to a number of sectors such as agriculture and emergency services) are appropriately protected from interference from other users; and understanding and enabling access to space (given the increasing number of other space objects and proposals). The consultation closes on 24 May 2022 and Ofcom aims to publish its final strategy later in 2022. To find out more, click here.

Ofcom answers questions on its new emergency video relay service

On 6 April, Ofcom published answers to several questions, mainly from the telecoms industry, about how Ofcom’s new emergency video relay service in the UK needs to work. Ofcom will add further answers as necessary as the launch date of 17 June 2022 approaches. To find out more, click here.

Government announces first phase of pilot to run high-speed broadband through water pipes

In August 2021, the Government announced a three-year project to accelerate the rollout of broadband and mobile signal in rural areas by feeding fibre-optic broadband cables through the UK’s water pipes. The Government has made four million pounds available for innovators to trial what could be a quicker and more cost-effective way of connecting fibre optic cables to homes, businesses, and mobile masts, without the disruption caused by digging up roads and land. On 6 April 2022 it was confirmed that the first phase of the trials would take place in South Yorkshire, focusing on the legal and safety aspects of the solution and ensuring that combining clean water and telecoms services in a single pipeline is safe, secure and commercially viable before any technology is installed. The Government’s ambition is that broadband companies could then tap into the network to deliver gigabit-capable connections to an estimated 8,500 homes and businesses along the route. The network could also be used to set up 5G masts to bring fast and reliable wireless broadband to hard-to-reach communities where wired solutions are too expensive to deliver commercially. The trial will also explore how fibre can help the water industry detect leaks, operate more efficiently, and lower the carbon cost of drinking water. The trials will last for up to two years and, if successful, the technology could be operational in networks from 2024 onwards. To  find out more, click here.

Update on UK Regulation of Digital Services – Government responds to follow-up report on digital regulation

In December 2021, the House of Lords Communications and Digital Select Committee published a follow-up report on digital regulation: “Digital Regulation: joined-up and accountable”, in which it said that regulators, government and Parliament must do more to ensure joined-up and effective regulation of the rapidly changing digital world. In particular, the Commitment commented that current systems were not rigorous or accountable enough to address regulatory gaps and overlaps, and better processes were needed to deal with emerging challenges, such as artificial intelligence advances. At the end of March 2022, the Government published its response, agreeing with the Committee that more joined-up working is needed between various agencies when it comes to regulating the digital space. The Committee has welcomed the Government’s recognition of the need for enhanced horizon-scanning and coordination across the CMA, FCA, ICO and Ofcom. The Government also agrees with the Committee that greater consolidation and joined-up working is needed to maximise and share insights generated within government, regulators, industry and academia. To find out more, click here.

UK’s Digital Regulation Cooperation Forum (DRCF) publishes its Annual Work Plan for 2022/23

On 28 April 2022, the DRCF (which comprises the CMA, Ofcom, the ICO and the FCA as members) set out its work plan for 2022/23, setting out how they plan to cooperate on focused projects. Particular areas of the focus in the year ahead for tackling significant digital challenges include projects focused on protecting children online, promoting competition and privacy in online advertising, supporting improvements in algorithmic transparency (to support the use of algorithmic processing to promote its benefits and mitigate risks to people and to competition, by exploring ways of improving algorithmic transparency and auditing) and enabling innovation in the industries regulated by the DCRF. To find out more, click here.

UK’s Digital Regulation Cooperation Forum launches a new digital research portal

On 25 March 2022, the UK’s Digital Regulation Cooperation Forum (DRCF) (which is made up of the CMA, the ICO, Ofcom and the FCA and is intended to support achieving consistency across different regulatory regimes and responsibilities in relation to digital markets) announced the launch of their new digital research portal. The new portal that brings together over 80 pieces of recent research on emerging and future digital developments from eight regulatory bodies, including the DRCF members, the IPO, the Bank of England, the ASA and the Gambling Commission. The DRCF’s CEO indicated that by ensuring that this body of knowledge is publicly available, fully accessible and easily discoverable via the DRCF webpage, the DRCF hopes to “better equip all who are interested in contributing to the shape of digital regulation in the UK, and to the debate on how society can best harness the best of the internet without the worst”. To find out more, click here.

New Online Safety Bill presented to Parliament

On 17 March 2022, the government’s new Online Safety Bill was presented to Parliament. The proposed new laws will apply to companies whose services host user-generated content such as images, videos and comments, or which allow UK users to talk with other people online through messaging, comments and forums – including social media platforms; sites such as forums and messaging apps, some online games, cloud storage and the most popular pornography sites; search engines (which play a significant role in enabling users to access harmful content) and sites which publish pornographic content (which will be required to ensure that children cannot access age-inappropriate material). Ofcom will regulate the new regime and have powers to take appropriate action against all companies in scope, no matter where they are based (which is essential given the global nature of the internet). Exemptions are also envisaged for some services with user-generated content such as news websites, certain retail services and certain services used internally by businesses and email services. The Bill returned to Parliament for Second Reading on Tuesday 19 April 2022. For more details, click here.

In conjunction with Taso Advisory, we recently hosted Rt Hon Jeremy Wright QC MP, former Secretary of State for Digital, Culture, Media and Sport and former Attorney General, to discuss the Bill, its likely trajectory through Parliament, and what it means for businesses. If you’re interested in catching up on the recording, please get in touch.

CMA publishes its Annual Work Plan for 2022/23

On 24 March 2022, the CMA published its Annual Plan for 2022/23, identifying the following key themes on which it will focus over the next year: i) protecting consumers from unfair behaviour by businesses – and in the CMA’s view, stronger consumer protection law and stronger powers will help it to prevent and address more effectively some of the harmful practices that might arise as the economy recovers and adapts after the COVID pandemic; and ii) fostering competition – by using its competition, market investigation, merger control and consumer powers to promote innovation, productivity and long-term growth right across the UK; iii) promoting effective competition in digital markets; iv) supporting the transition to low carbon growth, including through the development of healthy competitive markets in sustainable products and services; and v) delivering the CMA’s new responsibilities under the Office for the Internal Market and shadow Digital Markets Unit, and its work on the UK’s future subsidy control regime. The CMA still expects its Subsidy Advice Unit to begin providing advice, reporting and monitoring in Autumn 2022. The CMA will also continue to handle more complex cases, that pre-Brexit would have been reserved to the European Commission and continue to strengthen its position as a global competition and consumer protection authority. Please click here to find out more detail on this Annual Plan.

Government releases its response to consultation on reforming competition policy

On 20 April, the UK Government released its response to the 2021 consultation on reforming UK competition policy. A number of key competition policy reforms have been confirmed, including a more active pro-competition strategy, changes to improve the CMA’s Market Inquiry regime and UK merger control (such as adjusting jurisdictional thresholds to better target the most harmful mergers and changes to make merger investigations more effective and efficient), stronger enforcement powers to tackle illegal anti-competitive conduct (including the ability for UK competition law to apply to agreements, concerted practices and decisions which are implemented outside of the UK, depending on the effect of the conduct in the UK) and reforms to the CMA’s competition enforcement tools. To find out more, click here.

CMA publishes two new UK Horizontal Agreements Block Exemption Orders

On 8 April, the CMA published a Consultation recommending new rules to replace the UK’s retained EU Horizontal Block Exemption Regulations (Regulations 1217/2010 (the R&D Block Exemption) and 1218/2010 (the Specialisation Block Exemption)). The CMA is proposing a new R&D Block Exemption Order (BEO) and a Specialisation BEO which are tailored to the needs of businesses operating in the UK and UK consumers and the BEOs will have a 12-year duration. The proposed BEOs are similar to the retained HBERs to ensure the continuity of the current regime for businesses, with some limited changes to improve them to inter alia, provide greater clarity and make them easier to apply, clarifying the conditions for exemption and market share thresholds. The CMA has invited responses to this consultation by 6 May 2022. This will help inform the CMA’s final recommendation on whether to replace the retained HBERs when they expire on 31 December 2022). To find out more, click here.

CMA update on Merger control – National Security and Investment Act rules

On 11 April 2022, the UK Government published new guidance on compliance and enforcement for the National Security and Investment Act (NSI), which came into force on 4 January 2022. The Act gives the government powers to scrutinise and intervene in business transactions, such as takeovers, to protect national security, while providing businesses and investors with the certainty and transparency they need to do business in the UK. Certain sectors have notification requirements under these rules such as communications services, artificial intelligence, critical suppliers to the emergency services, satellite and space technologies and data infrastructure. The new guidance provides information on how to comply with the NSI and explains what can be expected if you are subject to orders and notices under the Act. To find out more, click here.

CMA publishes environmental sustainability advice to government

On 14 March 2022, the CMA published advice it has provided to government on how competition and consumer laws can help meet the UK’s environmental goals. To find out more, click here.

Update on the CMA’s plans for tackling digital competition

On 4 April 2022, the House of Lords Communications and Digital Committee published a letter update from the CMA dated 25 March 2022 on their future digital work plans. In the letter, the CMA notes that their strategy in this area involves: i) preparing to put the government’s proposed new digital markets framework into action through the Digital Markets Unit (DMU) as soon as the legislation is passed; and ii) in the meantime, using the CMA’s current powers (albeit they are not well suited) to tackle problems in digital markets more immediately wherever possible (to deliver for consumers).

Key priorities the CMA is already focused on include i) online advertising – as the CMA has gathered convincing evidence of competition problems (leading it to launch a new competition enforcement case on 11 March (on Google and Meta’s ‘Jedi Blue’ agreement and Google’s conduct in relation to intermediation services for online advertising) – a case run in parallel with EU and US investigations on the same subject); ii) their market study into online platforms and digital advertising – which provides an opportunity to take targeted action to deliver benefits for consumers ahead of the DMU powers taking effect; and iii) their existing digital market cases such as Google’s Privacy Sandbox (where Google has provided commitments to ensure its proposed changes to third party cookies do not reduce competition), a competition investigation into Meta’s collection and use of advertisers’ data in relation to its online classified advertising and online dating services; their decision to block Meta’s merger with Giphy (currently subject to appeal); and consumer law investigations into social media endorsements and fake online reviews. The CMA is also progressing their mobile ecosystems market study, which will conclude in June 2022, provide a detailed evidence base for DMU action once new tools are in place; and potentially lead to further targeted action under the CMA’s existing powers. In parallel with this study, the CMA is also using their competition law powers to investigate Apple’s conduct in relation to the terms and conditions of app developers’ access to the App Store. New investigations may also follow in the next few months.

In the CMA’s update, the CMA also notes that despite their ongoing investigations, the powers that the government has to date proposed for the DMU still remain essential as competition problems in digital markets will be extremely difficult to solve with the CMA’s existing tools. In the CMA’s view, only an ex-ante regulator – that can prevent anti-competitive behaviour before it happens; test, implement and flexibly refine remedies to boost competition in the long-term; and monitor acquisitions by the largest digital firms closely – will address the biggest problems in digital markets. The CMA points to the EU’s provisional agreement on the Digital Markets Act as evidence of how other leading economies share this view and are moving ahead with the necessary legislation – and will continue to provide all necessary support to the UK government as it develops a new legislative regime (which it is keen to have in place as soon as possible). For more detail, click here.

Despite the above, according to recent press reports, the UK government are rumoured to be planning to drop their plans to introduce a bill to empower a new technology regulator, the CMA’s Digital Market Unit, on a statutory footing, to take action to investigate and tackle the alleged dominance of internet companies, including Google and Facebook. The government’s upcoming new legislative programme for May 11 is not expected to include a bill which has caused a concern among many – particularly in light of the CMA’s conclusions that legislation is needed to address the biggest problems in digital markets. To find out more, click here.

CMA publishes papers on Online Choice Architecture: How digital design can harm competition and consumers

On 5 April 2022, the CMA’s Behavioural Hub (which sits within the CMA’s Data, Technology and Analytics Unit) published two reports which discuss and summarise evidence on online choice architecture (OCA) and how it potentially causes harm. OCA is the environment in which people act, including the presentation and placement of choices and the design of interfaces. The CMA’s publications include a Discussion paper (which sets out an overview of OCA, considers the types of OCA practice that are prevalent and identifies potential harms) and an Evidence Review Paper (which provides a detailed summary of the growing academic and regulatory evidence related to 21 OCA practices). These are intended to be a reference material to help authorities, businesses and others obtain a deeper understanding of OCA. To find out more, click here

Government releases its response to consultation on reforming consumer policy

On 20 April, the UK Government released its response to the 2021 consultation on reforming UK competition and consumer policy. A number of key consumer law reforms have been confirmed, including new measures for significantly enhancing CMA enforcement powers and tackling consumer harm in the areas of automatic renewal subscription models, fake reviews and package travel rules, To find out more about the proposals relating to the reform of consumer policy, click here.

Vodafone and gaming company Nazara to launch Indian mobile games subscription service

Vodafone has announced its partnership with Nazara to launch a mobile games subscription service in India. Customers will get access to over 1200 games including Disney and Marvel titles on the new Vi Games platform. To find out more, click here.

If you’re interested in updates on the Digital Markets Act or Online Safety Bill, please do also take a look at the latest edition of our Interactive Entertainment Newsletter.