Since their inception, Over the Top (“OTT”) connectivity providers have enjoyed favourable regulatory environment and a forbearing approach from the national regulatory authorities. However, due to the rapid growth of OTT services and their significant impact upon traditional communication providers, this approach has started to change. As suggested in this paper, OTT connectivity providers – particularly if E.164 numbers are used – are very likely to be classified as electronic communication services, and consequently may need to comply with the requirements applicable to traditional electronic communication providers.
The purpose of this paper is to highlight the main risks facing OTT providers in relation to the provision of services in EU Member States and offer solutions to these issues. This paper will demonstrate that a new regulatory approach may not only directly affect OTT connectivity providers but is also likely to have an impact upon traditional electronic communication service providers as more focus will be placed on how they cooperate with OTT providers and permit the use of their numbers.
Furthermore, comparisons will be drawn between OTTs and traditional electronic communication services. This paper will evaluate recent regulatory developments to support arguments as to whether OTTs should be classified as electronic communication services. It will then highlight the main communication requirements – applicable to OTT connectivity providers that allocate numbering resources for the provision of their services – and provide examples of different approaches to similar regulatory issues, adopted by EU member states. Finally, the report will examine security and data protection obligations in relation to electronic communication requirements to which OTT connectivity providers are likely to be subject.
Please note that this paper analyses classification and obligations of ECS under the EU regulatory framework which was enacted in 2002 and later amended in 2009. The current regulatory framework shall be replaced by Directive 2018/1972 establishing European Electronic Communications Code by 21 December 2020. The directive will significantly change the existing regulatory framework and its effect will be assessed in another paper.