Background
On 7th March 2002 the EU institutions adopted a set of measures streamlining EU legislation in the area of "electronic communications networks and services". The general intention behind the measures is to reduce regulatory burdens on EU telecoms operators as well as extending the telecoms regulatory framework to include convergent broadcasting networks.

Since the 1990s the EU institutions have been putting in place various measures for the full liberalisation of the telecommunications sector. The new package of measures not only consolidates and streamlines the relevant EU measures, but also obliges Member States to remove some restrictions that had been retained.

The complete package of measures which will be the basis for regulation of the sector will now be as follows:

1. Liberalisation Directive;
2. Framework Directive;
3. Access Directive;
4. Universal Service Directive;
5. Authorisation Directive;
6. Data Protection Directive
7. Radio Spectrum Decision;
8. Unbundled Local Loop Regulation.

What services and networks are covered by the new legislation?
The package, and in particular the "Framework Directive" seek to set out a harmonised framework for the regulation of "electronic communication services" and "electronic communication networks". This represents a contrast with previous EU legislation which initially specifically addressed telecommunications markets. The need to be "technologically neutral" and to recognise the processes of convergence of services and networks, particularly with broadcasting, mean that the regulatory framework will now cover all networks and services, including:

• wire, radio, optical or other electromagnetic networks including satellite, fixed (circuit-switched and packet-switched, including Internet) and mobile terrestrial networks;
• electricity cable systems, to the extent used for the transmission of signals;
• networks used for radio and television broadcasting and cable television networks.

• provision of TV and radio content, which Member States may in addition regulate for varying national reasons such as pluralism of the media, linguistic and cultural policies and protection of consumers, and which at EU level are subject to the "Television without Frontiers" Directive;
• "information society services" (e.g., internet content, e-commerce), as long as they do not consist in the conveyance of signals over networks, as already addressed by the EU E-Commerce Directive; and
• communications equipment (already subject to detailed EU mutual recognition rules and standards).

When will regulators intervene in the market?
National regulatory authorities, independent from operational and political interests, remain at the heart of the framework of regulation. The intention is that regulators should intervene progressively less in the market and that specific regulation should gradually give way to reliance on the working of general competition laws. The areas identified in the legislation where regulation is essential fall into two main areas:

• firstly where market forces are not able to meet the policy objectives connected with communications in the sense of a public service; and
• secondly where market forces are not yet sufficiently developed with the result that undertakings with market power may need to be subject to higher levels of regulatory controls in order to permit competition from new entrants.

The first category is addressed most obviously by the "Universal Service Directive". This permits Member States to select one or more undertakings to provide basic services at affordable prices in all parts of their territory and to set up schemes to reimburse the net costs of their doing so. Specific regulation will also be retained in relation to use of scarce resources (spectrum, numbering and access to property) and in relation to protection of personal data and privacy.

For the second category, national regulatory authorities will need to carry out market analyses in order to determine whether in a particular market one or more undertakings has "significant market power". If so, national regulatory authorities may maintain existing obligations or impose new obligations for the purposes of controlling possible abuses of such market power. Where a market is effectively competitive (i.e., no undertaking has significant market power) no new obligations may be imposed and the National regulatory authorities must withdraw relevant obligations previously imposed.

Will it become easier to get a telecoms licence?
The "Authorisation Directive" will bring about some of the most visible changes to the regulatory regimes in the EU Member States. EU telecoms markets are already generally legally open to all those wishing to provide services and networks (other than where scarce resources are involved). However, Member States have retained widely differing authorisation regimes, with access to the main markets involving very different and sometimes quite restrictive procedures, timescales and fees.

The new regime prohibits Member States from making the provision of networks or services dependent on approval of a licence application or other positive administrative decision: the system will be based on "general authorisations". The general rule is that any person may provide services or establish networks unless this would endanger the general EU Treaty exceptions of "public policy, public security and public health". The maximum that a Member State can require is that those wishing to provide networks or services notify their intention to the national regulatory authority. Any such notification should consist only of minimal identification information, a short description of the intended network and/or service and an estimated start date.

Even rights to use frequencies should "where possible, in particular where the risk of harmful interference is negligible" be part of the general authorisation. However, Member States are permitted to retain rules for granting of individual rights to frequencies as long as the relevant procedures are open, transparent and non-discriminatory. Administrative charges for general authorisations are to be limited to actual administrative costs of regulation.

Will it become easier to interconnect with national network operators?
Interconnection matters are addressed under the "Access Directive". Access is the preferred term relating generally to the provision of network facilities and services by a network provider to another party, while "interconnection" is defined as a specific category of access provided by one public network operator to another. Specific rules for access to television conditional access networks are also set out.

As under previous EU telecoms legislation, three levels of rights and obligations on operators may be identified:

• all operators: the general rule is that all undertakings should be legally free to negotiate access with each other, whether they are in the same or different EU Member States. Cross-border access will not require an operator to become authorised in the destination Member State if it does not operate a network or provide services there.
• authorised public network operators: have the right - and, when requested by another authorised public network operator, the obligation - to negotiate interconnection. National regulatory authorities may make interconnection obligatory in some cases, e.g., on the part of networks that control access to end-users.
• operators having significant market power: if so decided by the national regulatory authorities, such operators may be subject to additional obligations: to publicise information in relation to interconnection and/or access (which may include the reference interconnection offer required today from national operators); to avoid discrimination between applicants for access or interconnection; to account separately for different access or interconnection activities; to meet all reasonable requests for access to certain network facilities, including in particular unbundled access to the local loop, wholesale services, co-location, intelligent network services, mobile network roaming or mandatory interconnection; and, finally, to relate prices to costs and apply mandatory cost accounting rules.