Communications as an essential service during coronavirus (COVID-19) confinement

Generally, we have not (yet) seen legislative or regulatory measures taken for telecoms in respect of COVID-19. Ofcom and the UK Government are cooperating closely with telecom providers to manage the effects of COVID-19, including:

• to ensure that networks remain resilient and continue to operate effectively. Telecom providers are working together to monitor traffic on their networks and are keeping Ofcom informed of the measures they are taking to manage congestion effectively. Streaming services, such as YouTube, Netflix and Disney+, have agreed to lower streaming quality to help ISPs cope with increased demand during the outbreak in the UK;. While operators have reported significant increases in traffic over their networks – with the incumbent national network operator reporting almost a doubling of daily data consumption on the national network during March - so far UK networks have coped well and the increases have been well within their tolerance limits.
• to support customers during the crisis.On 29 March 2020, this resulted in a set of commitments agreed between Ofcom, the UK Government and the majority of established ISPs in the UK, who agreed to remove all data caps on current fixed broadband services, to offer generous new mobile and landline packages, and to offer alternative methods of communication to vulnerable customers wherever possible when repairs to broadband and landlines cannot be carried out. They have also agreed to ensure that customers struggling to pay bills are treated fairly and appropriately supported, although what this means in practice is unclear.

It is unclear how enforceable these commitments are – and whether they will in due course be backed by regulatory obligations.

Prior to this, some operators had already taken specific steps to support their customers during the crisis, such as providing unlimited calls, increased data allowances or zero-rating access to certain key websites – albeit on an individual sporadic basis.

Staff in the communications sector (including field engineers, network operations, data infrastructure, call centre and emergency number staff) have been designated as key workers by the UK Government, meaning they can continue to work and travel for work (without being challenged under the lockdown), and their children can continue to attend schools (which have otherwise been closed).

Unlike other countries, there has so far been no general suspension of portability or switching providers (whether by regulatory measures or voluntary commitments), which has led to criticism that certain operators are continuing to send engineers to do home installations for customers switching provider and putting lives at risk (while also seeking to reap profits from providers who have voluntarily suspended such measures during the crisis).

Revised approach to regulation and workplan

Ofcom is adapting its approach to regulation through this period. It is suspending all existing consultation deadlines and information requests and putting on hold new consultations, decisions and information requests. It notes the implementation of new obligations, such as the EECC, may need to be delayed, although Ofcom is liaising with the UK government on the EECC. It is adapting its work programme and will publish a revised version, taking into account the COVID-19 crisis and revising the timetable, at the end of April.

Ofcom has stated that it will take a pragmatic approach to regulation during this time, recognising that operators may not always be able to comply and are facing staff shortages (of between 20% and 40% in some cases). It has written to operators to explain it will take account of the unique circumstances when enforcing the rules. There are three specific areas which Ofcom has highlighted may attract a more pragmatic approach: compliance with end-of-contract notification obligations; compliance with broadband speed codes of practice; and automatic compensation for delays or failures to carry out repairs or install new services.

But Ofcom also states that it expects industry to continue to provide the best possible service to customers and take decisions to support critical services, vulnerable customers and those reliant on communications services, which it will support where they are in the interests of consumers and businesses. It will prioritise enforcement against potentially harmful content relating to COVID-19 and will take enforcement action if it sees evidence of operators exploiting customers.

The impact of COVID-19 on the launching of 5G networks

In the last year, four mobile network operators launched 5G services in the UK. With growing demand for greater capacity, Ofcom has been consulting on auctioning new licences in the 700 MHz and 3.6-3.8 GHz bands. It released its decision in early March but given the threat of challenge from the industry, Ofcom stated that it did not want to implement the auction regulations until it had greater clarity on the outcome of any challenge.

It is not clear what impact COVID-19 will have on the bringing or timing of any such challenge. Ofcom has emphasised that investment in 5G and fibre is of critical importance, and recognised the need to support the networks so that they are ready for the future as the country comes out of the crisis. What this means in practice is unclear at this stage.

There have been reports that other 5G projects, such as the launch of 5G accelerators outside London as a testbed for 5G features, have been affected but that operators are looking at alternatives, including remote access options.

More recently, there have been reports of 5G infrastructure being vandalised and telecom engineers being harassed by members of the public, as a result of conspiracy theories linking the coronavirus spread to 5G. This has prompted the UK Government and Ofcom to issue strong statements denying these claims and to implement measures to tackle fake news, e.g. Ofcom has started warning media publications they could face sanctions for spreading conspiracy claims.

Download the full multi-country report here.