Regulating Telecommunications and OTTs : Levelling up or levelling down sector-specific regulation?

The European telecommunications sector has witnessed a period of change in the last decades. Starting with the liberalisation process of the 1990s, the successive introduction of sector-specific regulation has resulted in a move from state-owned monopolies to privatisation and competition in the industry. Presented as a temporary instrument, the sectoral regime was intended to phase out and gradually be replaced by general competition law as a sufficient degree of competition emerged in the markets. Such transition has not taken place yet. After three decades of regulatory reforms, and a considerable degree of competition has emerged in most telecommunications markets, the sector now faces new challenges. In particular, telecommunications operators face growing competition from a new market actor providing services Over-The-Top of the Internet. These ‘OTT’ service providers offer communications services that increasingly substitute traditional telecommunications services. Yet they are not subject to the sectoral telecommunications framework. Whereas telecommunications operators must comply with a dual regulatory regime, OTT undertakings are subject to horizontal legislation only. The purpose of this thesis is to is to examine the necessity and appropriate scope of sector-specific telecommunications regulation at the EU level. To this aim, two closely related research questions are investigated, including 1) whether (or to what extent) sector-specific regulation is still needed to regulate telecommunications networks and services, and 2) whether (or to what extent) the scope of sector-specific regulation should be extended to also cover OTT services. These are timely questions as the European Commission proposed an overhaul of the telecommunications rules in September 2016. As far as the first research question is concerned, this thesis concludes that many of the sector-specific rules should be withdrawn since they are already covered by horizontal legislation. To reduce the risk of obsolete provisions as well as inconsistent and overlapping legislation, priority should be given to horizontal over sectoral legislation whenever possible. The sector-specific obligations should instead be minimised to provisions that are absolutely necessary for promoting competition and protecting end users. This is at least the case for the sectoral rules on interconnection and emergency services. As far as the second research question is concerned, this thesis concludes that the scope of the sector-specific rules should not be extended to also cover OTT services. At present, the technical and economic characteristics of these services do not warrant specific rules in addition to the horizontal rules in place. An extension of the sector-specific rules on interconnection and emergency services would instead cause significant additional cost for OTT providers and constitute a serious threat to innovation. These findings must however be reviewed in a few years as the market for OTT services has continued to mature