The Digital Networks Act’s Scope Creep: How Article 9 Paves a Sneaky Pathway to Network Fees
Main takeaways
- The proposed Digital Networks Act unjustifiably extends telecom-specific regulation to content delivery networks, private networks, and entire sectors – such as automotive and logistics – that have nothing to do with providing telecom services
- This regulatory expansion would increase compliance costs, create regulatory uncertainty, deter investment in connectivity, and open a pathway to network fees
- EU co-legislators should urgently narrow Article 9’s scope and explicitly exclude private networks and content delivery networks
For years, many dismissed warnings about telecom giants’ demands for ‘network fees’ as mere speculation or fearmongering, given that the idea had been rejected so often since the 2000s. Now, the debate has fundamentally shifted. With the European Commission’s proposal for the Digital Networks Act (DNA) on the table, these risks are written directly into the legal text currently being scrutinised by EU co-legislators.
To understand the full scope of the threat, it is critical to recognise that the DNA text provides two separate avenues that could each unilaterally lead to network fees. Because these pathways are structurally independent, blocking one in the EU legislative process would not remove the threat posed by the other.
The first avenue uses Article 9 to drastically expand the traditional telecom framework and sweep in a massive range of new companies, including private networks and content delivery networks (CDNs). The second track creates a complaints backdoor through Articles 191-193, setting up a ‘conciliation mechanism’ that contains a review clause allowing the Commission to transform the rules into a fully mandatory regime after 36 months.
This piece zooms in on that first pathway, examining why the expansion of Article 9 represents unjustified regulatory overreach. It risks imposing disproportionate compliance costs (particularly on smaller companies), discouraging investment in connectivity, and creating uncertainty across the wider digital sector. Ultimately, it would leave Europe’s connectivity ecosystem worse off than it is today.
1. The cascading costs of regulatory overreach
Historically, Europe’s General Authorisation (GA) regime was strictly reserved for traditional electronic communications providers: telecom operators that inherited copper networks from state-owned companies, mobile phone operators, and internet service providers (ISPs) that sell connectivity services directly to the general public. The GA framework imposes significant compliance obligations on them, including regulatory fees, data protection obligations, and consumer protection requirements.
However, Article 9(2) of the proposed DNA now seeks to fundamentally alter this landscape. It would extend the GA regime to any electronic communications network used, wholly or mainly, to provide “information society services available to the public”. Because existing EU law defines an ‘information society service’ incredibly broadly – as almost any service or website accessible over the internet – this new wording blurs the line between a telecom company and any ordinary company with digital activities.
Today, banks, e-commerce platforms, gaming studios, and connected-car manufacturers do not just build software; they own and operate massive private networks to route data securely, synchronise cloud servers, and deliver services instantly. Under the new DNA wording, these private networks would be treated similarly to public networks, despite having absolutely nothing to do with traditional telecommunications. Similarly, commercial CDNs – distributed sets of servers that cache customers’ content close to end users – would also be regulated in the same way as telecom networks.
All of this is being turned upside down without any stated policy goal or market failure to fix. The Commission has framed the DNA as an exercise in simplification, yet the proposal ironically adds more complexity. Indeed, a recent assessment by the Body of European Regulators for Electronic Communications (BEREC) found that “Articles 9 and 10 of the DNA proposal raise concerns regarding the clarity and consistency of the scope of the general authorisation regime,” warning that the DNA text risks creating legal uncertainty, “regulatory gaps and overreach.”
2. How this opens a backdoor to network fees
Increasing the cost of operating CDNs and private networks will inevitably deter companies from upgrading or expanding their infrastructure in the EU. This would force thousands of European businesses, including SMEs (again, going far beyond the scope of what most people would consider telecom companies), to divert finite resources towards managing parallel, conflicting regulatory compliance.
To make matters worse, Article 9(4) fails to clarify exactly which obligations apply to which providers, passing the buck to future BEREC guidelines. European businesses are essentially told to fly blind until regulators work out the details. The scope creep becomes even more serious. By reclassifying CDNs and private networks under the telecom umbrella, the DNA introduces a sneaky backdoor to network fees.
That is because, under Article 66 and Article 189, newly captured digital entities could be forced into mandatory interconnection negotiations and dispute-resolution procedures with major telecom operators. In other words, big telcos would be able to use this mechanism to charge twice for the same traffic: once to the consumer buying internet access, and a second time to the app or website the consumer is trying to use. This risks breaking the current internet ecosystem, which BEREC has explicitly confirmed functions effectively, competitively, and at low cost for all involved.
Conclusion: Crucial fixes are needed
If Europe is serious about simplification, protecting its competitiveness and the open internet, EU policymakers must change course before the DNA is set in stone. This requires three key amendments.
First, Article 9(2) should be revised to remove the ambiguous reference to ‘information society services’ altogether, ensuring that non-telecom digital services are not inadvertently brought within the regulation’s scope. Second, the text must make the exemption for private networks explicit and legally binding. Transferring the helpful language from Recital 43 – which recognises that private networks serving closed user groups should remain exempt – directly into Article 9(3) would permanently protect these vital infrastructures from heavy-handed telecom obligations.
Finally, the DNA must explicitly adopt the established NIS2 definition of content delivery networks, and exclude CDNs from both the General Authorisation regime and mandatory dispute-resolution mechanisms. This would remove the threat of regulatory duplication and protect these critical building blocks of the internet from being weaponised by dominant telecom operators seeking to disrupt the ecosystem.
Without these changes, the DNA would completely defeat its own simplification objective and damage Europe’s connectivity and competitiveness. Rather than creating a clearer, more investment-friendly framework, it would extend old-school telecom rules across the broader digital sector, increasing regulatory uncertainty and holding back European innovation.
