Brexit planning full steam ahead? Spotlight on telecoms and media

As the 31 October 2019 deadline for the UK to leave the EU draws ever closer, uncertainty continues to remain as to whether any such departure will be accompanied by a "deal" (i.e. a version of the Withdrawal Agreement setting out arrangements for the UK's withdrawal) or "no-deal". Or indeed whether the October exit date will be further extended once again.

Against the backdrop of this uncertainty and the UK Prime Minister, Boris Johnson's, new proposal yesterday to agree a revised deal with the EU, Brexit planning ought to continue to be at the top of the compliance programme agenda for organisations operating in the telecoms and media sectors.  As well as the potential for a greater compliance burden arising from regulatory divergence between the UK and other EU member states over time, issues due to the UK no longer forming party of the Digital Single Market, such as lack of reciprocal recognition, are likely to prove particularly challenging for organisations operating in this sector. For example:

• Broadcasting: the country-of-origin principle under the Audiovisual Media Services Directive (AVMS) will no longer apply in the UK post Brexit (subject to any transition period). This could mean that multi-national UK licensed broadcasters will no longer be guaranteed freedom of retransmission in other EU member states and in order to continue to broadcast into Europe they may be required to re-structure their European operations, obtain a separate broadcast licence, and comply with additional regulation, in another EU member state. Whilst there are a couple of alternatives to the country of origin principle, there are a number of misgivings meaning that the alternatives are unlikely to be an adequate substitute for the single market access under the AVMS.
• Content portability: UK citizens will no longer be able to make full use of their paid online content services wherever they are in the EU post Brexit (subject to any transition period) and vice versa in respect of EU citizens travelling to the UK. Whilst paid online content service providers could commercially negotiate content portability rights into licence agreements to provide such functionality post Brexit, this could be administratively burdensome and costly. If no such rights were secured, a service provider would simply need to cease portability functionality or risk infringing the rights of licensors.
• Roaming: the absence of caps on wholesale roaming charges between EU mobile operators means that surcharge-free roaming could no longer be guaranteed for UK mobile phone customers at the retail level across the EU post Brexit (subject to any transition period). UK mobile phone customers travelling to the EU could therefore be subject to additional retail roaming charges (and vice versa), as the regime will instead depend on individual roaming agreements that are commercially negotiated between mobile operators, rather than being mandated by wholesale regulation. In the shorter term this is likely to be most disruptive for mobile virtual network operators (MVNOs) and smaller mobile operators that are not part of a large European group (and are therefore less likely to be able to take account of existing pan-European wholesale roaming arrangements).

Full details of these and other key issues to consider for those operating in the sector are set out in our up to date HSF Brexit Legal Guide 2019 available here as well as our previous related Digital TMT & Sourcing blog posts including From Paris with love: The latest brexit twist for the AVMS industry and AVMS Directive: To implement or not to implement? That is the question. Further sections of the HSF Brexit Legal Guide 2019 that may be of interest also include the impact of Brexit on data protection, intellectual property and commercial contracts and other obligations.

On 2 October 2019 the Department for Culture Media and Sport (DCMS) also published updated high level Brexit guidance for those operating in the DCMS sectors.

With just under 4 weeks to go until the exit date, watch this space.