Inclusive Communications Working Document
New Regulatory Framework for Electronic Communications: Provisions Relating To Disabled Users
The new regulatory framework contains a series of rules and principles that ensure that the liberalisation of the electronic communications market does not occur at the expense of end-users, but brings benefits to them. It assumes that competition and market forces are the most effective means to satisfy user needs, but provides national regulatory authorities (NRAs) with the necessary powers to act to protect users where they need to do so.
The above-mentioned rules and principles are mainly contained in the Universal Service Directive. However, the other Directives of the new regulatory framework also contain relevant provisions. In particular, Article 8 of the Framework Directive, which sets out the policy objectives and regulatory principles that must guide NRAs in carrying out their duties, requires the latter:
- to promote competition by inter alia ensuring that users, including disabled users, derive maximum benefit in terms of choice, price and quality.
- to promote the interests of citizens by inter alia ensuring all citizens have access to universal service and addressing the needs of specific social groups, in particular disabled users.
A series of provisions in the Directives refer specifically to disabled users. However, disabled users must obviously also enjoy the same rights arising from the Directives as any other end-user. This applies whether these rights stem from the provisions relating to universal service obligations placed on designated undertakings or from other specific provisions (e.g. number portability) which allow end-users to derive maximum benefit in terms of choice, price and quality.
In addition, Article 6 of the Authorisation Directive allows NRAs to require that consumer protection rules specific to the electronic communications sector, including conditions in conformity of the Universal Service Directive, be attached as conditions to a general authorisation. Such rules may be warranted by the need to meet the specific needs of disabled users. In any event, they must comply with the requirement set out in Article 6 that conditions attached to a general authorisation be objectively justified in relation to the network or service concerned, non-discriminatory, proportionate and transparent.
2.1 The Universal Service Directive
As mentioned above, the Universal Service Directive contains most of the provisions of the new regulatory framework that promote the rights and interests of end-users, including disabled users. It is important to distinguish between:
- universal service obligations that may only be imposed on designated undertakings and whose net cost to the latter may be recovered; these obligations are included in Chapter II of the Directive; and
- other obligations placed on all or specifically defined categories of undertakings (such as consumers’ right to a contract with undertakings providing connection and/or access to the public telephone network) whose net cost may not be financed under any universal service funding scheme; these obligations are set out in Chapter IV of the Directive.
2.2 Specific measures for disabled users
Article 7 of the Universal Service Directive enshrines the obligation of Member States, where appropriate, to take specific measures for disabled users in order to ensure access to and affordability of publicly available telephone services, including access to emergency services, directory enquiry services and directories, equivalent to that enjoyed by other end-users.
In addition, Member States may take specific measures, in the light of national conditions, to ensure that disabled end-users can also take advantage of the choice of undertakings and service providers available to the majority of end-users.
The Directive does not define “equivalent access” for the purposes of this provision. Recital 13 provides examples of the type of specific measures for the disabled users that could be adopted by the Member States and mentions, for example, the making available of accessible public telephones, public text telephones or equivalent measures for deaf or speech-impaired people.
The absence of a harmonised definition of what constitutes “equivalent access” leaves a large degree of discretion to the Member States to take the measures that they deem appropriate to meet their obligations under Article 7. In doing so, they are guided by other provisions of the Directive, which provide details as to what the services referred to in Article 7 consist of.
2.3 Access to and affordability of publicly available telephone services for disabled users
The notion of access to and affordability of publicly available telephone services relates to the fundamental requirement of universal service established in Article 4 of the Directive that end-users must be provided on request with a connection at a fixed location to the public telephone network and access to publicly available telephone services, at the quality specified and at an affordable price, in the whole territory of the European Union.
It is for the Member States to define, in the light of specific national conditions, what constitutes an affordable price.
Article 9 of the Directive further provides that undertakings specifically designated with universal service obligations may be required to provide tariff options or packages to consumers which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing or using the publicly available telephone service.
Member States may also, besides any provision for designated undertakings to provide special tariff options or to comply with price caps or geographical averaging or other similar schemes, ensure that support is provided to consumers identified as having low incomes or special social needs, e.g. from social expenditure financed from public funds.
Article 10 provides that Member States shall also ensure that designated undertakings provide various facilities, including itemised billing, in order that subscribers can monitor and control expenditure and avoid unwarranted disconnection of service.
Recital 13 provides that among the specific measures aimed at disabled users Member States could provide itemised bills in alternative format on request for blind and partially sighted people.
2.4 Disabled users’ access to emergency services
Article 6 provides that NRAs can impose obligations on undertakings in order to ensure that public pay telephones are provided to meet the reasonable needs of end-users in terms of the geographical coverage, the number of telephones, the accessibility of such telephones to disabled users and the quality of services.
They shall also ensure that it is possible to make emergency calls from public pay telephones (and indeed from any telephone) using the single European emergency call number "112" and other national emergency numbers, all free of charge and without having to use any means of payment.
Article 26 of the Directive provides that Member States shall ensure that undertakings which operate public telephone networks make caller location information available to authorities handling emergencies, to the extent technically feasible, for all calls to the single European emergency call number "112".
Recital 13 provides that specific measures may need to be taken to enable disabled users to access emergency services ‘112’, but does not provide any example of the kind of measures that could be adopted.
2.5 Disabled users’ access to directory enquiry and directory services
Article 5 of the Universal Service Directive provides that at least one comprehensive directory is available to all end-users in a form approved by the relevant authority, whether printed or electronic, or both, and is updated on a regular basis, and at least once a year. At least one comprehensive telephone directory enquiry service must also be available to all end-users, including users of public pay phones.
Recital 13 provides that among the specific measures aimed at disabled users Member States could provide services such as directory enquiry services or equivalent measures free of charge for blind or partially sighted people.
2.6 Quality of service
Article 11 of the Universal Service Directive provides that NRAs shall ensure that all designated undertakings publish adequate and up-to-date information concerning their performance in the provision of universal service, based on the quality of service parameters, definitions and measurement methods set out in Annex III of the Directive. No compensation of any net cost which may arise from this obligation may be financed under a universal service funding scheme.
NRAs may also specify additional quality of service standards, where relevant parameters have been developed, to assess the performance of undertakings in the provision of services to disabled end-users and disabled consumers. NRAs shall ensure that information concerning the performance of undertakings in relation to these parameters is also published and made available to the national regulatory authority.
NRAs shall also be able to set performance targets for designated undertakings and in so doing, take account of views of interested parties. They must also be able to monitor compliance with these performance targets.
Article 22 of the Directive provides that besides the designated undertaking(s), other undertakings that provide publicly available electronic communications services may be required to publish information for end-users on the quality of their services and NRAs may specify the quality of service parameters to be measured, and the content, form and manner of information to be published.
Recital 13 notes that quality of service standards do not yet exist in respect of disabled users. Performance standards and relevant parameters should be developed for disabled users, as is acknowledged in Article 11 of the Directive. NRAs should be enabled to require publication of quality of service performance data if and when such standards and parameters are developed.
2.7 Chapter IV of the Universal Service Directive: end-user interests and rights
The Directive contains several provisions aimed to secure the interests and rights of end-users beyond their access to the services falling under the scope of universal service.
These provisions are of various types: on the one hand, they evolve around the principle of providing end-users with information on the applicable prices and tariffs, standard terms and conditions and the quality of the publicly available communications services. On the other hand, they result in immediate concrete rights as from the date of application of the new regulatory framework, such as the right to fixed and mobile number portability and to the interoperability of consumer digital television equipment.
Article 31 of the Directive provides that Member States may impose reasonable must carry obligations, for the transmission of specified radio and television broadcast channels and services, on undertakings under their jurisdiction providing electronic communications networks used for the distribution of radio or television broadcasts to the public, where a significant number of end-users of such networks use them as their principal means to receive radio and television broadcasts. Such obligations shall only be imposed where they are necessary to meet clearly defined general interest objectives and shall be proportionate and transparent. They can, where appropriate, entail a provision for proportionate remuneration.
Recital 43 of the Directive specifies that such must carry obligations may include the transmission of services specifically designed to enable appropriate access by disabled users.
2.8 Standardisation
Disabled users should in principle be able to enjoy the same benefits arising from the above provisions as any other end-user. In some cases, they may however be faced with particular problems or constraints at the level of the equipment supporting the provision of the relevant services and facilities.
The regulatory framework for electronic communications does not concern radio and telecommunications terminal equipment and the mutual recognition of conformity, which are covered by Directive 1999/5/EC. It covers consumer equipment used for digital television to the extent provided in its specific provisions.
Recital 8 of the Framework Directive notes that it is important for regulators to encourage network operators and terminal equipment manufacturers to co-operate in order to facilitate access by disabled users to electronic communications services.
2.9 Digital television
Recital 10 of the Access and Interconnection Directive notes the need to determine whether there is a justification for extending obligations currently applicable to conditional access systems to new gateways such as electronic programme guides and application programme interfaces to ensure accessibility for end-users to specified digital broadcasting services.
It further indicates that Member States may specify the digital broadcasting services to which access by end-users must be ensured by any legislative, regulatory or administrative means that they deem necessary. Also, as indicated in Article 6(4) of the Access and Interconnection Directive, the conditions applied under the said Article are without prejudice to the ability of Member States to impose obligations in relation to the presentational aspects of electronic programme guides and similar listing and navigation facilities.