Don't laugh: Ofcom's a model for post-Brexit Europe

Telco regulation done right? We can show how

BREXIT With a stunned Europe absorbing the departure of the second biggest member of the EU, our much-criticised Ofcom could provide a guiding light for new ways of co-operating.

Ofcom receives plenty of stick here at The Register: most recently for its handling of OpenReach and its insistence on a four-network mobile market, which leaves one giant looming ominously over the other three. But Ofcom is cited on the continent as a model for other regulators to follow, and compared to the evolving, multi-layered mess of European telco regulation, Brexit could be a blessing.

Praising Ofcom may seem incongruous. Wasn’t the UK one of Europe’s 4G laggards because of regulatory dithering? Yes, we were, but that’s because the UK had spawned a highly litigious environment.

Since 2010, uber-regulator Body of European Regulators of Electronic Communications, the creation of former Euro Commissioner for Information Society and Media, Viviane Reding, has inserted itself into the regulatory market. And BEREC has given Ofcom its thorniest current problem: net neutrality rules that are a microcosm of EU dysfunction.

The Telecomms Package passed last year included a net neutrality pledge, after a classic fudge was thrashed out at Parliament. But BEREC then seized the reins and allowed activists and legal academics to create the technical regulations (see page 6) that Parliament didn’t even hear, outlawing certain types of bundling (or “zero rating”) – which was never part of the plan.

Some of the “wise men” BEREC appointed have Google connections or work at institutions that receive Google funding.

Last year Ofcom commissioned research (A Study of Traffic Management Detection Methods and Tools) empirically demonstrating how hard it was to measure neutrality naughtiness, because neutrality naughtiness is indistinguishable from business as usual. “It is inherently impossible to detect directly the specific application of differential treatment (other than by inspecting the configuration of network elements) ... Even when there is such an intention it may not have any effect.” (page 38 of this PDF)

How much easier life was when Ofcom was given a straightforward obligation to look for violations and a simple principle to apply.

John Strand of Strand Consulting thinks that investment in Europe’s telco infrastructure has dropped as a result of Brussels arbitrary regulation of mergers. That might not change so much.

Whether post-Brexit Ofcom remains under BEREC’s umbrella needs to be decided. But there’s no need for Ofcom to try to obey the rules of a club of which we are no longer a member.

Bear in mind that GSM, a triumph of European co-operation, was created using a bottom-up intergovernmental model that the Brexiteers favour, and without the EU. If it had been left to Brussels, we might still be wrangling over it today. CEPT (the European Conference of Postal and Telecommunications Administrations) where the spectrum is divvied up, is another forum for co-operation outside the lumbering political EU machinery.

Just as a committee must move at the pace of its dumbest member, Ofcom will be able to move more swiftly in response to business innovation, and in some spectrum areas, it already does. The 2GHz band for mobile satellites for example, has yet to be formally ratified EU-wide.

It’s game on. ®

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