Am I providing an electronic communications service or operating an electronic communications network?

Introduction

If something walks like a duck, quacks like a duck and looks like a duck, it probably is a duck. 

If you think you might be operating a telecoms network or providing a telecoms service (including internet access or voice telephony) the chances are that you are subject to electronic communications regulation in the UK and Europe. However the good news is, as discussed in Do I need a licence? (answer = generally no) and the General Conditions of Entitlement pages, that the basic level of regulation is relatively light, so many market participants operate in blissful ignorance of their regulatory status.

Electronic Communications Network

The definition of an electronic communications network is incredibly broad. The underlying definition in the European Framework Directive expressly includes:

  • ‘transmission systems;
  • switching or routing equipment; and/or 
  • other resources, including network elements that are not active,

which permit the conveyance of signals by:

  • wire,
  • radio, 
  • optical or
  • other electromagnetic means,

including

  • satellite networks,
  • fixed (circuit- and packet-switched, including Internet)
  • mobile terrestrial networks,
  • electricity cable systems, to the extent that they are used for the purpose of transmitting signals,
  • networks used for radio and television broadcasting, and
  • cable television networks, irrespective of the type of information conveyed.’

Unlike some other regulatory systems (e.g. the US) wich distinguish between wireline and wireless service or telecoms and information services, the European definition is all encompassing and designed to capture pretty much all transmission networks, regardless of the service or application running over them.  This interpretation is backed up by the over-arching principle of ‘technology neutrality’ contained in the EU framework. 

Electronic Communications Services

The definition of electronic communications services is also incredibly broad as it links back to the definition of electronic communications network. The definition in the European Framework Directive, defines an electronic communciations service as:

  • ‘a service …
  • normally provided for remuneration…
  • which consists wholly or mainly in the conveyance of signals on electronic communications networks,
  • including telecommunications services and transmission services in networks used for broadcasting,
  • but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services,[…], which do not consist wholly or mainly in the conveyance of signals on electronic communications networks’.

It is not unusual for any service or application to have the conveyance elements of the service or application subject to regulation as electronic communciations services, whereas the content of those services or applications is not. It is perhaps clearest if you consider TV and radio, where the content of the programs are regulated as Audio-Visual Media Services, whereas the broadcast transmission is regulated as an electronic communications service.

Other definitions

Unfortunately, not all aspects of telecoms law are harmonised, so the definitions within the Regulation of Investigatory Powers Act 2000 (which predates the Communications Act 2003) hark back to the now (mostly) repealed Telecommunications Act 1984 and use alternative definitions of ‘telecommunications system’ and ‘telecommunications service’ that for some purposes are arguably wider than the definitions of electronic communications networks or services.

Communications Provider

As ‘providing an electronic communciations network or service’ is a bit of a mouthful, ‘Communications Provider’  or ‘CP’ is used throughout the UK regulatory system as shorthand for that concept.  However, a word of warning – this concept is infinitely flexible and within, by way of example, the General Conditions of Entitlement, the various conditions use different definitions of Communications Provider – a piece of staggeringly confusing drafting to the uninitiated.