Regulation of OTT Service Providers - BEREC Launches Survey

December 21, 2020, the date by which the new European Electronic Communications Code (Directive (EU) 2018/1972; "Code") must be adopted by the member states, is casting its shadow. In a communication dated 22 April 2020, the Body of European Regulators for Electronic Communications (BEREC) called on providers of so-called over-the-top ("OTT") services to provide information on "different OTT parameters".

Addressees: Providers of interpersonal communications services & video streaming services

Specifically, all providers of interpersonal communications services over the public Internet as well as providers of video streaming services are addressed. They are invited to answer two questionnaires by 22 May 2020 and 26 May 2020 respectively. The aim of the survey is to identify the "metrics and indicators" which will help the national regulatory authorities (in Germany, the Bundesnetzagentur) to gain a better understanding of the electronic communications markets. In particular, information collected internally and the definitions and methods used for such an assessment are queried. BEREC plans to organise a workshop on a harmonised collection of OTT data for the end of 2020. A report by BEREC shall complete the process in 2021.

As a reminder, the Code shifts from the previous, primarily technical definition of the services covered, which focused in particular on the responsibility for signal transmission, to a functional approach. So-called interpersonal communications services are thus newly addressed by a - at least partial - regulation under telecommunications law (Code Art. 2(no. 4)). These services are characterised by the fact that they enable a direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons. It is not necessary that the services allow a connection to publicly allocated numbers. Thus, in addition to OTT services such as Skype, which among other things allows for PSTN outbreak under certain conditions, pure e-mail or messenger services (so-called number-independent interpersonal communications services) are also included.

Reduced regulation for number-independent interpersonal communications services

Although the latter fall under a limited scope of regulatory rules – e.g., there is no obligation to notify the national regulatory authority (Code Art. 12) - all OTT service providers must now be aware that they will be subject to regulation under telecommunications law in the near future. For example, they will have to comply with regulations on service security (Code Art. 40 et seq.) or (in principle) on the protection of end users (Code Art. 98 et seq.). It is also possible that OTT service providers will be subject to supplementary regulatory measures for interoperability in individual cases if end-to-end connectivity between end-users would otherwise be endangered (Code Art. 61(2)(c)).

Conclusion & Outlook

BEREC's call makes it clear once again that all providers of OTT services will be faced with a new legal framework by the end of the year, which will abolish the current strict demarcation from traditional telecommunications services and subject them - at least in part - to corresponding regulation. In this context, close cooperation with the regulatory authorities is advisable in order not to lose out on opportunities to influence subsequent measures.

The questionnaires must be requested by e-mail at pm@berec.europa.eu. Please do not hesitate to contact us for further information and support.