Industry Report: European Policy
The Telecoms Reform Package
by Julio Talavera Milla
- The relevant provisions for broadcasters are included in the Framework, Authorisation, Universal Service and Access Directives.
Significant changes are proposed to spectrum management. As opposed to the traditional planning (allocation) of spectrum and the Member States' administrative system of assigning frequencies to particular users and uses, the Commission suggests the introduction of a flexible market-based approach, including the trading of spectrum. At the same time, the Commission aims to harmonize spectrum use. There is no general audiovisual exclusion from the new spectrum management approach. However, Member States have the competence to make certain exceptions/restrictions with a view to promoting cultural diversity and media pluralism.
a) Radio spectrum cannot be driven by economic considerations alone. Efficient use of it must take into account the general interests of the public and society. Spectrum management has to take into account social, cultural and political aspects, as well as technical parameters.
b) Broadcasters are granted exclusive individual rights as they are subject to strict regulations regarding content obligations and general interest objectives (investment in independent production, programming of European original content in accordance with the Audiovisual Media Services Directive and national legislation). If broadcasters have to pay for the use of, and access to, spectrum, this would most likely lead to a decrease in European programming. It would also have an impact on the European broadcasting model and on consumers.
The Framework Directive establishes the principles of service and technological neutrality, i.e. any frequency should be open for the deployment of any service using any technology. In principle, this would mean that VHF and UHF bands would no longer be reserved mainly for radio and television respectively. However, Member States can provide for restrictions to service neutrality if this is justified to ensure the promotion of cultural and linguistic diversity and media pluralism. Restrictions to technological neutrality can be applied, for example, to avoid interference and in order to comply with restrictions on service neutrality, e.g. those linked to the promotion of cultural diversity and media pluralism.
a) Interference reduces the potential for technological and service neutrality. Interference problems arise when different services (particularly broadcasting and mobile services) are deployed in the same bands.
b) The promotion of cultural diversity and media pluralism is subject to limited exceptions/restrictions, which Member States have to introduce under certain conditions; this creates legal uncertainty.
(Relevant provisions: Articles 9 -9c, Recitals 21 and 23)
The Authorisation Directive favours general authorizations, as opposed to individual rights of use (licences). However, if it is justified, in order to avoid a serious risk of harmful interference or to achieve a general interest objective, individual rights of use can be granted to broadcasters. If these rights are granted for ten years or more and may not be traded, they will have to be reviewed every five years.
a) The granting of individual rights of use, which is normal practice in broadcasting bands, would also come under an exceptional regime.
b) The formulation of the review clause in combination with Article 9a of the Framework Directive is not clear and creates legal uncertainty.
(Relevant provisions: Articles 5, 6a and 6b, Recitals 22, 50 and 53)
European Electronic Market Authority
At the request of the Commission the new European Electronic Market Authority would deliver opinions on the harmonization of the conditions for the use of frequencies for cross-border services. In cases of such harmonization, and if the Commission has identified a need to provide for a common selection procedure for undertakings, the Authority will be responsible for assisting the Commission in the selection of undertakings and for collecting usage fees and redistributing them to Member States. When the Commission wants to adopt measures to harmonize the European position with regard to ITU negotiations or when it issues mandates to the CEPT to study harmonization possibilities, the Authority will also be involved. To achieve more transparency, the Authority will maintain a spectrum register. Furthermore, the new body could be asked to give an opinion on conditions for access to digital television and radio services (Article 6 of the Access Directive) as well as on the interoperability of interactive digital television services (Article 18 of the Framework Directive). It is important to note that the new Authority would always act at the request of the Commission, which has the last word on any subsequent decision.
a) The new Authority will give the Commission a strong instrument for harmonizing national spectrum policies. There is a risk that this will influence national media policies in a way which interferes with the competences of the Member States.
(Relevant provisions: Articles 4, 10, 11, 12 16, 17 and 20)
Universal Service Directive
Article 31 of the Universal Service Directive has also been amended. With regard to the services which accompany radio and television broadcast channels, the possibility for Member States to impose must-carry obligations is reduced to "accessibility" services. These are defined as services to improve accessibility for users with disabilities, such as a videotext service, subtitling service and audio description or sign language. Furthermore, the Commission wants Member States to review must-carry obligations every three years.
a) Other accompanying services, such as subtitling for linguistic minorities and electronic programme guides, would be excluded from must-carry obligations.
b) The review period of three years is too short.
(Relevant provisions: Article 31 and Recital 24)
The current Access Directive provides Member States with the possibility of imposing access obligations on (proprietary) platform operators so that end-users of television and radio broadcasting services have access to all services offered by broadcasters. These access obligations imply that the platform operator has to give access to the relevant technical specifications which enable the broadcaster to provide electronic programme guides (EPGs) and apply application programme interfaces (APIs, used for interactive television) properly. If Member States impose access obligations, this has to be done on so-called "fair, reasonable and non-discriminatory" (FRND) terms. The amended notification procedure in Article 7 of the Framework Directive introduces the possibility for the Commission to request the Member State concerned to amend the measure and - under certain circumstances - even to require withdrawal of the measure.
a) This complex procedure is ultimately equivalent to an unacceptable right of veto by the Commission with regard to access obligations, which national regulators can impose on undertakings in order to pursue national media policies.
(Relevant provisions: Article 5 of the Access Directive and Article 7 of the Framework Directive)