Feedback period open for the new EU legal framework on telco: the Digital Networks Act

What is the DNA?

The DNA is envisaged to become the main electronic communications law in the EU and, in line with the current "omnibus" trend, would merge and replace several major laws on telecommunications, including the European Electronic Communications Code (EECC), the BEREC Regulation, the Open Internet Regulation, and the Radio Spectrum Policy Programme, consolidating them into one directly applicable regulation.

In terms of harmonisation and enforcement, it must be highlighted that the DNA is designed as a regulation (primacy + directly applicable) and not a directive, reinforcing the uniformity and trying to reduce the current 27-fragmented legal environment.

Key objectives & changes

The DNA’s main objectives are:

1. To strengthen the competitiveness of the connectivity sector & industry, and to facilitate investment.
2. To reinforce the single market for electronic communications: strengthening harmonisation, reducing regulatory and administrative burdens.
3. To contribute to the resilience and preparedness of the digital infrastructures.

These objectives translate into (among others):

• The general authorisation regime & Single Passport: The DNA aims to replace the EECC fragmented authorisation regime with a single passport, notifying one authority instead of 27, and based on a common BEREC made template. Following this one-stop shop principle, it also provides for single EU authorisation for satellite spectrum.
• Copper switch off and transition to fibre: the DNA sets 31 December 2035 as the general switch off deadline, with the possibility of earlier decommissioning. It provides for measures to assist in the process.
• Stronger harmonisation and simplification of rules set by EU authorities: with measures impacting spectrum allocation, EU numbering planning, and issuing of guidance and reports (and cooperation) at EU level by BEREC and the future Office for Digital Networks. Nevertheless, national regulatory authorities remain largely responsible for national enforcement.

Bonus: Two additional changes pushing past the limits of traditional telco

1. Broadening the scope of networks subject to the DNA

The scope of the general authorisation will not only cover public electronic communications networks or services, but also electronic communications networks, wholly or mainly, for the purpose of providing / delivering information society services available to the public. In the same way, the definition of interconnection is subtly altered by deleting references to “public” networks.

This appears to echo the DNA’s idea of convergence between telecom, edge computing, AI and digital infrastructure. Having said this, the extent of the impact of these changes remains to be seen.

The above is without prejudice to the general exclusions on content delivered over ECN or networks mainly used for private, internal or closed, predetermined user group communications, including networks used only for internal links between communications infrastructure facilities not mainly intended for publicly available digital services.

2. Impact on “undertakings active in the electronic communications or closely related sectors”: BEREC guidance to facilitate ecosystem cooperation & Voluntary dispute resolution mechanism

The DNA mandates the BEREC to issue guidelines to assist providers of electronic communications networks and “other undertakings active in the electronic communications or closely related sectors”, in the application of industry practices and in facilitating cooperation. Such guidelines shall cover matters outside of the scope of obligations under the DNA with effects on the provision of electronic communications services or information society services.

IP-IC market becomes relevant in this regard. As indicated in the DNA’s Recitals:

“as a means of end-to-end traffic delivery, providers of electronic communications networks other than public increasingly hand-over traffic to providers of public electronic communications networks in the form of peering or transit. In certain cases, such traffic may give rise to disproportionate or unsustainable investment needs for the receiving providers of public electronic communications networks. Such situations should be addressed in accordance with the guidelines to facilitate ecosystem cooperation adopted by BEREC and, where appropriate, through the foreseen facility for voluntary conciliation”.

In line with the above, the proposal introduces a voluntary conciliation mechanism for ECN providers and, again, “undertakings active in the electronic communications or closely related sectors”. This new mechanism goes a step further from the traditional mandatory dispute resolution mechanisms between public ECNs/ECSs (which is still in place), involving even non-telco operators and BEREC issuing an opinion in relation to its guidance

This brings back the debate of de facto network fees for content and application providers including, but not only, audiovisual media providers (like video on demand platforms, video sharing platforms, etc.).

Authored by Santiago de Ampuero and Cristina Barón.