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E.U. Review of Telecommunications Directives


Introduction

The primary objective of PhoneAbility, as the UK Group of COST219bis, is to promote access to telecommunications services and facilities for disabled and elderly people. Ready access for everyone is seen as particularly crucial when an ever-increasing proportion of the essential interactions within a sophisticated community is handled by electronic means. Those who are excluded, for whatever reason, from the development of the Information Society are at risk of having disadvantage piled upon disadvantage. Through no fault of theirs, they will be increasingly distanced from the mainstream current of daily life by the pace of commercial and technological change. PhoneAbility is pleased to note the repeated assertions by the Commission that it would be unacceptable to have a community divided in this way, characterised by the presence of the information rich and the information poor. The process of convergence, although largely an unknown quantity, is likely to result in the newest design architectures of the information and communications technologies being applied across all sectors, so that few - if any - types of service will be untouched by the spread of electronic communication. While some consumers may elect to remain with the old and familiar models of service delivery, for as long as these remain available and affordable, it would be unforgivable if those who are ready to embrace the new were rebuffed by unconsidered barriers.


National and European Action

It is PhoneAbility's view that the potential danger of unwittingly excluding a significant part of the population calls for some pan-European action. We believe that the matter cannot be dealt with solely through the use of subsidiarity powers, for two reasons. Firstly, the commercial and technological pressures which will be the drivers of change are global, so an aggregation of Member States will be better placed than an individual to achieve results. Secondly, some aspects of community law (for example, the Single Market Directives) cannot be varied by individual Member States so any action in that quarter would have to be initiated by the Commission. We do not believe, however, that a supra-national regulatory authority is either necessary or desirable. The issues which concern us would go beyond the scope of any regulator associated with the ICT sector, and may even require the introduction of harmonized non-discrimination measures. We understand that the Commission already has an inter-DG liaison group which is seeking to bring disability issues into the mainstream of Community decision-making. We would wish to see activities of this kind given a more formal basis and a summary of the deliberations put in the public sector, so that interested citizens might be better aware of these wider issues and the means of addressing them.


Telephone Terminals

Since access to any telecommunications service is controlled by features of the service itself and by those of the user's terminal, it will be most important to ensure that proper facilities are offered in both. De-regulation of terminals through the RTTE Directive has resulted in the separation of these products from the regulatory regime governing telecommunications networks, so that no single body is responsible for ensuring satisfactory end-to-end working. This is a cause of concern to those users who have particular needs but little consumer power. Some protection for such users will therefore be an essential element within the liberalised and market-led structure now adopted for telecommunications. Accommodating such protection within a framework appropriate to the converging technologies is not likely to be an easy matter, and a main objective of this submission is therefore to ask the Commission to give serious and detailed consideration to this question.

The RTTE Directive, which is not yet due for review, contains a clause which empowers the Commission to impose additional requirements, inter alia, to facilitate use of terminal equipment by disabled people. The effect of this clause, if it is put to use, is as yet undetermined but the initial deliberations suggest that its influence will be limited. The essentially de-regulatory nature of the Directive, and the consequential outcome that non-conforming products will need to be viewed as defective goods, are bound to mean that only the most transparent access issues can be addressed in this way. If this is the case, it means that the scope for regulation is effectively limited to the area where the market is most likely to deliver acceptable solutions anyway. As there appears to be a presumption that the Commission would act only in the event of market failure, use of this particular clause might prove to be exceptional.

PhoneAbility has been examining the other possible means to ensure the availability, and perhaps the affordability, of accessible terminals. As well as making efforts to acquaint the manufacturing sector of the potential market to be developed, two distinct approaches have been identified. The first is the use of horizontal anti-discrimination legislation, such as the Disability Discrimination Act in the UK, to influence the market-place. Although such legislation cannot force manufacturers to make products of a particular type, it does place obligations upon many purchasers of terminal equipment to ensure that their premises and facilities are accessible. Employers, and managers of premises open to the public, have particular duties in this respect and their needs as customers are bound to be noted by the market. This approach seems to offer possibilities in other sectors within the general area of convergence so, although it may not be directly related to the topics of this review, it is pertinent to mention it.

The second approach considered by PhoneAbility is the use of Article 8 of Directive 98/10/EC to require designated universal service operators to underwrite the availability of accessible terminals of various types. The selection of types of terminals would have to be a matter for consultation and review, and this mechanism could be provided by national regulators working to the principle of subsidiarity. If it was considered necessary, the question of affordability could be addressed through the same mechanism by calling up the facility for universal service funding. The mechanism would only be triggered in the event of market failure, that is by the non-availability of affordable terminals with particular features, and would not automatically require universal service operators to become retailers of terminals. It may be the case that the wording of Article 8 is already sufficient to allow of this interpretation, so that no additional Commission action is called for, but it would be helpful to establish that this is so. PhoneAbility notes that there is a precedent in the UK for this type of action, as there is a clause in British telecom's licence which sets a similar obligation, albeit for a very restricted range of terminal facilities.


Universal Service

PhoneAbility believes that the coverage of universal service does need to be extended gradually, in line with the general perception of what constitutes a basic service. The time is fast approaching when evident candidates for inclusion must be broadband services and mobile networks. A key question in relation to each of these is whether the act of designation within the scope of universal service can be allowed to lead the extension to near-universality, or whether it can be considered only when that state has been achieved.

Within the UK these services are widely available - and the geographic availability of broadband services will be further enhanced as local loop unbundling and proposals to provide ISDN connections to schools come to fruition. The constraints on uptake are linked more to affordability than availability and there are signs of competitive initiatives to provide both services at lower cost. Premature designation within the universal service umbrella could have the effect of shifting further network development costs on to all users of telecommunications, via a levy for a universal service fund, and this would have many disadvantages. On the other hand, these two services could deliver many benefits for disabled users if suitable tariffs were available. PhoneAbility would prefer to see a framework in which universal service could be extended by decision of the national regulator, once it was judged that the conditions were right. Use of the subsidiarity principle in this way seems to be desirable as progress will not be uniform in every Member State. Moreover, the concept of affordability is necessarily linked to national circumstances, which only a national regulator could be expected to judge.


Convergence and Regulation

The differing degrees of regulation applied to the telecommunications, broadcasting and IT sectors are bound to cause problems as convergence demonstrates the inconsistencies between them. PhoneAbility supports the approach of using horizontal regulation to govern matters such as IPR, privacy, decency and prevention of fraud, and would like to see additional horizontal measures dealing with accessibility and avoidance of discrimination. Although the additional channels made available through the advent of digital broadcasting offer the possibility of access advantages such as multi-lingual audio description and sub-titling, there is a potential problem in ensuring that these benefits are delivered. The concept of public service broadcasting may be difficult to maintain in the face of pressure from extra-territorial sources not subject to the same regulation, and it may be necessary to designate a universal service in broadcasting - analogous to that in telecommunications. These issues will become prominent over the next few years and PhoneAbility would like to see enabling measures introduced so that timely action can be initiated. This does not seem to require a pan-European Regulatory Authority for its achievement, as the main objective would be to act against representatives of non-EU broadcasters who did not conform to the standards expected of EU-based organisations. This might involve activity across a number of sectors, using a wide raft of legislation, such that freedom of action by national administrations - but within an overall framework determined by the EU - might offer the most effective strategy.


SUMMARY

In the opinion of PhoneAbility:

  • a pan-European regulator for the ICT sector is neither necessary nor desirable,
  • the Commission should consider the need for harmonized horizontal legislation on avoidance of discrimination, with potential to influence the market in telecommunications products and services, as part of its stated policy of 'mainstreaming',
  • Member States should be free to make use of Article 8 of Directive 98/10/EC for ensuring the availability of accessible terminal equipment as a part of universal service, and for maintaining appropriate quality of end-to-end working for users whose requirements are critical,
  • universal service should be extended to broadband and mobile telecommunications at a pace which allows Member States to proceed at their own discretion,
  • the problems arising from convergence should be dealt with as far as possible through horizontal legislation, but with the possibility of a form of universal service to protect public service broadcasters from damaging competition.


This commentary has been prepared by Tony Shipley for the RNIB Scientific Research Unit and for PhoneAbility (formerly called COST 219 UK Group). The information and comments are presented in good faith but readers intending to act upon them are advised to obtain independent confirmation of critical points before so doing.

 



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