GSM gateways under the Wireless Telegraphy Act: future regulation
- Dechrau: 29 Mehefin 2005
- Statws: Ar gau
- Diwedd: 06 Medi 2005
Summary
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
The Court of Appeal handed down a declaratory judgment in (1) Office of Communications (2) T-Mobile (UK) Limited v Floe Telecom Limited (in liquidation) Cases A3/2007/0658 and 2007/0665 on 10 February 2009. This judgment is available at the following link:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/47.html
The Court clarified the legal position on use of GSM gateways as follows:
“It is declared that:
- On its proper construction, the Public Mobile Operator Licence issued to Vodafone on 28 January 2002 under section 1(1) of the Wireless Telegraphy Act 1949 does not authorise the use of GSM Gateways (including commercial multi-use GSM gateways (“COMUGS”)) for providing a telecommunications service by way of business to another person.
- In the absence of a licence or exemption granted or made under section 8 of the Wireless Telegraphy Act 2006, the use of GSM gateways (including COMUGs) for the purpose of providing a telecommunications service by way of business to another person is unlawful.”
Ofcom will now proceed to consider our consultation on future regulation of GSM Gateways dated 29 June 2005 and will announce next steps in due course.
Following the Court of Appeal judgment of 10 February 2009 relating to an appeal by Floe Telecom Limited against an Ofcom decision, we are preparing a new consultation document on the authorisation of GSM gateways.
This new consultation will set out updated proposals. We will be taking into account the responses to the consultation of June 2005 and will be keen to receive any new evidence on the subject from stakeholders.
We expect to publish the consultation document in the summer and consult for a period of approximately six weeks.