As discussed in Am I providing an electronic communications network or service? a very wide range of activities constitute the provision of electronic communications networks and/or services, and are subject to regulation as such. In general no individual licences, authorisations or notifications are required.
Instead, depending on the scope of the network or service provided Communications Providers are subject to various obligations set out in the General Conditions of Entitlement, set and periodically updated by Ofcom.
Points to note
Before getting into the detail, a few pointers for anyone working with the general conditions for the first time:
- they are constantly updated. Although Ofcom issue consolidated versions from time to time, these rapidly date and there is no central register or easy way of checking what General Condition is in force at any time other than checking all Ofcom statements since the issuance of the last consolidated set of General Conditions.
- Ofcom announced in February 2016 that it would be undertaking a complete review of the General Conditions.
- the definition of ‘Communication Provider’ differs from general condition to general condition. Rather than a binary analysis of whether activities fall within the scope of the generic definition in the Communications Act, the particular definition in each condition needs to be looked at.
- they cannot be interpreted on a stand-alone basis. Many explicitly refer out to other documents, and even where that is not the case they need to be interpreted against the backdrop of the consultation relating to their original introduction, subsequent Ofcom policy statements and decisions and court decisions in the UK and Europe.
Analytical framework to identify applicable obligations
Ofcom have produced some guidelines and these are a useful starting point to identify applicable obligations to any particular activity. A more systematic approach is to follow a structured three step process:
- identify the type of network and/or service being provided;
- identify applicable general conditions, and provisions within those conditions; and
- by reference to the conditions and other related documents (see above) produce a compliance checklist.