This document consults on possible changes to the present regulations governing use of GSM gateways in the UK and discusses them in the light of Ofcom’s statutory duties, its commitment to using the least intrusive regulatory mechanisms to achieve its policy objectives and relevant European law.
GSM gateways are devices containing one or more subscriber identity modules (SIMs) for one or more mobile networks, which enable calls from fixed telephones to mobile telephones to be routed directly into the relevant mobile network . A call made via a GSM gateway appears to the mobile network to have originated from a mobile ‘phone registered to that network and so will often attract a cheaper call rate than an ordinary fixed to mobile call.
Ofcom has recently clarified that it is entirely legal under UK law for end-users (whether businesses or ordinary consumers) to buy, install and use GSM gateways for their own use. However it is currently illegal under UK law for anyone to use GSM gateway equipment to provide a communications service by way of business to another person or organisation, irrespective of where the gateway equipment is located, or how many or few end-users are connected to each gateway. This prohibition on ‘commercial’ use applies equally to the mobile network operators (MNOs) as to other organisations, since the MNOs’ licences do not currently extend to the installation and use of GSM gateways.
When it published its recent statement on these issues, Ofcom invited comments on its interpretation of the relevant legal instruments, and also sought evidence and views on a number issues relating to GSM gateway use.
The responses to the statement broadly supported Ofcom’s conclusion on the present legal position. (Fuller details are set out in decisions under the Competition Act 1998 (the ‘Competition Act’), which Ofcom is publishing in parallel with this document, on complaints by two GSM gateway operators about cellular operators’ refusal to provide services to them .) Views on the more general questions differed widely.
In the light of the responses to the more general questions, Ofcom is now considering whether the present restrictions on gateway use continue to be appropriate. This document analyses the available evidence and seeks views on a range of options for future regulation from outright prohibition to full liberalisation. These options are assessed in terms of their costs (eg the risk of harmful interference to other users of the mobile phone service and the problem of masking of originating caller identity and location) and the potential benefits for consumers arising from gateway use.
Ofcom has tentatively concluded that the chief difference between the appropriateness of each of the options is the risk of harmful interference and the extent to which such risk can be effectively managed. On the basis of its analysis to date, Ofcom believes that there is some scope to liberalise the use of gateways through a limited revision of the existing Exemption Regulations, and that this can be done without unacceptable risk of harmful interference. This exemption is unlikely however to extend to all types of gateway use.
This document also contains a discussion of other options, including maintaining the status quo and an individual authorisation regime.
It should be noted, moreover, that the acceptability of any liberalisation is likely to be dependent on the ability of Ofcom and/or the Home Office to impose and enforce obligations under the Regulation of Investigatory Powers Act 2000 (the ‘RIPA’), or otherwise, to continue to ensure the success of activities carried out under the RIPA. Ofcom is pursuing this issue separately with the relevant government departments.
In the meantime, Ofcom would emphasise that commercial use of GSM gateways remains illegal. Ofcom has not as yet authorised the use of GSM gateways to provide electronic communications services by way of business to third parties, and until it does, such use will continue to be a criminal offence under the Wireless Telegraphy Act. If such use is brought to Ofcom’s attention, Ofcom may take enforcement action, which could include prosecution under the Wireless Telegraphy Act.
Interested parties are invited to comment on any of the matters discussed in this consultation by 6 September 2005.
The full document is available below