RD418 - ETNO Response to the Public Consultation on the draft BEREC Report on OTT services BoR (15) 142

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Introduction

ETNO welcomes the opportunity to contribute to the BEREC draft report on OTT services that timely addresses the issue of the level playing field between substitute communication services in the European digital single market.

ETNO appreciates the importance BEREC gives to the proportionality criteria as well as BEREC’s view on the need to question the current ECS definition. BEREC also considers that it might be appropriate to develop a unique and effective horizontal protection system dedicated to all consumers of digital services to ensure the same level of protection for all in a technological neutral way. Unfortunately BEREC draft report does not develop further this promising approach.

ETNO highlights several major concerns, especially:

• The report does not explain why the principle of proportionality should only be considered when introducing obligations on new players. Any regulation would need to be assessed in the light of such a proportionality criterion;
• The current distinction of telcos’ communication services must not serve as a justification to continuously regulate these services;
• The report ignores that the so-called social benefits of regulation would be de facto undermined by the commercial consequences and the negative impact on consumers in the market of uneven regulatory burden between telcos and OTTs;
• There is no trade-off between the principles of proportionality and fair competition between competitors (level playing field) whereas a future proof framework would require the equal application of both criteria to all players in the market;
• The NRAs ineffective enforcement of current rules is not even addressed;
• The proposed taxonomy is neither sound nor future proof;
• ETNO calls for a deep reconsideration of this draft to contribute to a truly futureproof regulatory concept for communication services, for the benefit of consumers and competition.

General comments

BEREC draft report is developed in terms that could be called as "Electronic Communications-Centric" as it focuses on communication services without addressing the broader picture of the digital market. In the future, the telecom market will not exist as such, as it will be diluted in the digital environment. In a digital world the application of general horizontal consumer protection rules across the whole range of digital services should prevail, specific rules to communication services should be applied only in selected areas when necessary and proportionate and independently from the nature of the provider or the method of provision. ETNO encourages BEREC to take a more forward looking perspective to re-think the future regulatory regime.

ETNO welcomes BEREC recognition that the Electronic Communication Services (ECS) definition is outdated because it is based on criteria that require interpretation, does not match with technological developments anymore and, thus now opens the door to different interpretations in Member States. However BEREC draft report still analyses very relevant issues on the basis of this outdated ECS definition, therefore the conclusions reached are misled.

The current debate on the ECS definition will influence the future Regulatory Framework that will start being in force not before 2020 and will last from one to several decades. A rough fix of a fully outdated concept is not what is required to build the future framework on solid grounds.

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Read the full reflection document here.