Valuing action over talk: Neelie Kroes knows why

Posted on January 29, 2010 | Filed Under digital content

Today, BEREC officially started its work. And while it is certainly not a “superagency”, I do not believe it is just “a powerless talking shop”. And, for that matter, it definitely is not an EU telecoms regulator either, even if Commissioner Reding called  it just this in her speech today. Reding was not the only Commissioner present, she was joined by her soon-to-be successor, Neelie Kroes, who in her speech emphasised she really values action over talk.

Looking at the video of her hearing in the European Parliament, I do understand this value-chain: talk is not her strongest point. Take a look at the Video of the hearing, and for instance start at 18:04:24, when the Chairwoman of the Committe on Culture and Education, Doris Pack,  asks Kroes for her defnition of a balanced dual broadcasting-system and the role of public service media. The Chairman of the hearing gives Kroes the floor, saying “Ms Kroes - straight question, straight answer!” And then comes Kroes’ answer:

Neelie Kroes: It is a very clear question and we are aware that depending on the public broadcasting services we try to deal with principles all over the place the same, and tailor-made approaches; but in itself we should be quite clear, the definition has to be as clear as crystal, for otherwise we are not getting a real result out of our discussions. And what we did in the past in competition, in competition issues, was, I imagine, quite acceptable also for you, to find a way in which the diversity is still there and that is a big issue, that is one of those issues that we are fond of in Europe and that is still a competitive market in which at the end of the day the consumer is able to pick out what he or she is preferring.

Everything clear as crystal? I do think Commissioner Kroes could learn a thing or two from the legendary Sir Humphrey of the BBC-series “Yes, Minister”, who put it much better:

Jim Hacker: “When you give your evidence to the Think Tank, are you going to support my view that the Civil Service is over manned and feather-bedded, or not? Yes or no? Straight answer.”
Sir Humphrey: “Well Minister, if you ask me for a straight answer, then I shall say that, as far as we can see, looking at it by and large, taking one thing with another in terms of the average of departments, then in the final analysis it is probably true to say, that at the end of the day, in general terms, you would probably find that, not to put too fine a point on it, there probably wasn’t very much in it one way or the other. As far as one can see, at this stage.”
Jim Hacker: “Is that Yes or No?”
Sir Humphrey: “Yes and no.”
Jim Hacker: “Supposed you weren’t asked for a straight answer?”
Sir Humphrey: “Then I should play for time, Minister.”

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The telecoms package in the Official Journal

Posted on December 18, 2009 | Filed Under communication technologies

This is just to alert you to the EU Official Journal of today with the publication of the new telecoms package. Here are the links:

In addition to the regulation and the directives there is also the Commission Decision 2009/978/EU of 16 December 2009 amending Decision 2002/622/EC establishing a Radio Spectrum Policy Group and the Commission declaration on net neutrality (which is also published as an addendum to the directive 2009/140/EC).

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An encouraging obligation? HFSS food and drink advertising and codes of conduct under the Audiovisual Media Services Directive

Posted on December 10, 2009 | Filed Under national regulatory authorities, events / publications

One of the more recent arrivals on the scene of regulatory concern for audiovisual policymakers and supervisory bodies is the promotion of unhealthy foodstuffs to children which may have adverse effects on their physiological well-being and development. As one among several factors feeding the development of childhood obesity as part of a wider obesity epidemic (information from the World Health Organization), marketing practices have increasingly come under scrutiny and regulatory authorities as well as elected representatives have directed their attention toward the issue. In Europe, already before the process of revising the regulatory framework for television broadcasting had come under way, countries like the UK were therefore considering regulatory action to address the endangerment of public health by food and drink advertising notably of products that are high in fat or salt or sugar (HFSS) (for a summary of the evidence to which UK Government policy responded in 2003, see this note by the Parliamentary Office of Science and Technology; for recent UK evidence regarding child obesity, see here and here).

With the adoption of the Audiovisual Media Services Directive, the diverse initiatives at the national level were complemented by a general European framework provision on advertising of unhealthy food and drink set out in Article 3e (2) AVMSD [the ‘food provision’] stipulating that

Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communication, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.

The obligation thus made incumbent on the Commission and the Member States is similar to that of Article 3c of the new Directive, which requires national authorities to encourage providers to increase accessibility of their services to users with a hearing or visual disability. While both provisions target very tangible characteristics of both linear and non-linear audiovisual media services, the nature of the obligations that they impose inevitably leads to questions about their likely effectiveness. Read more

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“Thus hath the course of justice wheel’d about”*: decided cases

Posted on December 3, 2009 | Filed Under communication technologies

Today marks the end of the “regulatory holidays”, as the Court of Justice of the European Union decided (in the Case C-424/07 Commission v. Germany) that Germany has failed to fulfil its obligations under Article 8(4) of the Access Directive, Articles 6 to 8(1) and (2), 15(3) and 16 of the Framework Directive, and Article 17(2) of the Universal Service Directive, by adopting Paragraph 9a of the Law on Telecommunications. Under this paragraph, Germany had effectively declared “regulatory holidays” for “new markets” (more details here). I have blogged about the case before here and on the opinion of the advocate general here.

The Court’s judgment is rather straightforward and a very thorough vindication of the Commission’s position. The Court deals with and upholds every single complaint of the Commission and concludes that the German law did indeed restrict the NRA’s discretion more than is permitted by the Framework Directive (and also contravenes the Access and Universal Service Directive).

Today also marks the end of the blogging holidays: after a hiatus of some five months I have decided not to close the blog down completely, but to continue with a lighter schedule and just focus on following the case law developments in European electronic communications. So don’t expect frequent posts, but keep subscribed to the feed if you are interested in the cases decided by the Court of Justice of the European Union (new name - but I guess I can still abbreviate it as ECJ) and the General Court of the European Union (formerly known as Court of First Instance of the European Communities - I have no idea how to abbreviate this Court correctly, so I just started using “GC”).

I have updated the list of pending cases and added a new list of decided cases, linking not only to the judgments, but also to the blog posts here (or, if I didn’t write about the case here, to the blog posts at my German language blog e-comm).

And just as a brief update, I can point you to these cases decided over the past five months:

New opinions of the advocate general are available in these cases:

*) Shakespeare, King Richard III, Act IV, Scene 4

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“And in regard of causes now in hand”*: pending cases at the ECJ and the CFI - update

Posted on July 7, 2009 | Filed Under communication technologies

A first step to bring a clearer focus to the coverage of European case law in telecommunications and broadcasting in this blog: I updated the list of “cases to watch”. The list of cases currently pending before the European Court of Justice and the Court of First Instance is now in a new and separate page, directly accessible from the start page (look at the link list above), here. As a next step, I will add a list of the closed cases that we have already covered on this blog, probably next week.

*) Shakespeare, King Henry V, Act I Scene 1)

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“Silence is the perfectest herald of joy”* or: our take on the “why we haven’t posted much recently”-topic

Posted on July 2, 2009 | Filed Under communication technologies

other directions

My latest post to this blog dates from 20 May 2009. It’s not like nothing happened in the six weeks that have passed since - there was, just for instance

Of course any one of these issues would have deserved extensive coverage in a blog that is dedicated to “content and carrier” - but we simply did not get around to do it.

You can take the quote in the title of this post (from Shakespeare, as you might have guessed) as an indication that we are not terribly sorry: we had other things on our mind, and we’re perfectly happy. We’re also perfectly happy to wind down this blog that has lasted for some two years now and has provided our readers (and ourselves) with almost two hundred posts. It started out as a group blog - and then, as some members of our group changed their professional focus, their contributions became less frequent. This spring I realised I seemed to be the only one left to keep up the posting.

So I have to ask myself this question: shall I keep up this blog? I have not yet come up with a definite answer. One possibility I am thinking about is to reduce the “mission” of the blog to simply follow the European case law in electronic communications - this would mean fewer posts, but with a clearly defined focus.

The other possibility I am considering is to open up the blog: Wouldn’t it be interesting to have a truly international group blog on European communications law?

So there is my question to all our readers: would you be interested in writing for a European communications law-blog? Of course, it doesn’t have to be (but it could be) www.contentandcarrier.eu - we could just as well create a new blog or move to another existing blog; this is no vanity project for us.

Please leave a comment, or if you prefer to make direct contact send an e-mail to hanspeter[at]lehofer.at.

In the meantime, even if we’re not promising to post more in the next weeks (it’s summer, even the European Court of Justice will be in recess!), I’d still recommend you keep contentandcarrier on your feed list (or subscribe to it, if you haven’t done so yet) - at least you’ll receive a notice if after all we finally do shut down the blog.

—————

*) Shakespeare, Much Ado About Nothing, Act II, Scene 1

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“maintain it with some little cost”*: Termination Rates Recommendation

Posted on May 20, 2009 | Filed Under communication technologies

Today, the Commission Recommendation of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (2009/396/EC) was published in the Official Journal. Presenting the recommendation two weeks ago, Commissioners Reding and Kroes were excited with the prospect of “cutting the price of phone calls” and “ending the fixed-mobile-subsidy“, even though on the face of it it is just a recommendation that should lead to a more harmonized approach of national regulatory authorities (NRAs) in applying remedies in the fixed and mobile-termination-markets, and especially in the cost models that NRAs use to set the appropriate rates.

The Commission’s approach is laid out in greater detail in an explanatory note, and there is additional information in a further staff working document on implications for industry, competition and consumers.

Summing up the recommendation:

  • NRAs are expected to “set termination rates based on the costs incurred by an efficient operator. This implies that they would also be symmetric.”
  • The evaluation of efficient costs should be “based on current cost and the use of a bottom-up modelling approach using long-run incremental costs (LRIC) as the relevant cost methodology.”
  • It is, however, ok to “compare the results of the bottom-up modelling approach with those of a top-down model which uses audited data with a view to verifying and improving the robustness of the results and may make adjustments accordingly”.
  • Any deviation should be “justified by objective cost differences which are outside the control of the operators concerned. Such objective cost differences may emerge in mobile termination markets due to uneven spectrum assignments.”
  • The “appropriate efficient scale of the modelled operator” is set at 20 % market share for mobile operators .
  • “In case it can be demonstrated that a new mobile entrant operating below the minimum efficient scale incurs higher per-unit incremental costs than the modelled operator, after having determined that there are impediments on the retail market to market entry and expansion, the NRAs may allow these higher costs to be recouped during a transitional period via regulated termination rates. Any such period should not exceed four years after market entry.”

Also today, Ofcom published its consultation document on future regulation of wholesale mobile voice call termination (consultation website).  

In addition, and probably not directly linked, Ofcom today also announced a pay freeze (Ofcom’s “CEO” Ed Richards, by the way, made GBP 417.581 [around € 473.000] in 2007-08, according to the Taxpayers’ Alliance - even if the the freeze for him means missing out on the bonus, he won’t really feel cold, I presume).

I am still waiting, however, for Ofcom’s bottom up-model of an efficient regulator.

*) Shakespeare, King Richard III, Act III, Scene 2

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“Who would be thence that has the benefit of access”*: C-192/08 TeliaSonera

Posted on May 19, 2009 | Filed Under communication technologies

Does the access directive 2002/19/EC permit a member state to require operators of electronic communication networks to negotiate interconnection (or access) agreements with a provider of SMS- and MMS-services? The ECJ will have to address this issue in the case C-192/08 TeliaSonera, and last week, advocate general Colomer delivered his opinion (not yet available in English). To sum it up briefly:

The obligation to negotiate interconnection as laid down in article 4 of the access directive applies only to operators of electronic communications networks, not to providers of electronic communications services. As this is not a case of minimum harmonisation, member states may not impose such an obligation also on service providers. Whether the SMS- and MMS-service provider in this particular case is to be regarded as a network operator or a mere service provider will have to be determined by the national court.

But even if there is no obligation to negotiate, regulatory authorities could, under article 5 paragraph 4 of the access directive (and article 20 of the framework directive 2002/21/EC) “intervene …  in order to secure the policy objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC (Framework Directive).”

Advocate general Colomer, who has a reputation for quoting fine literature (even if the relevance to the case is sometimes hard to see), this time quotes C.M. Cipolla’s Fundamental Laws of Human Stupidity (in footnote 30, to paragraph 50). I have tried hard to understand what Colomer wants to tell us with this reference, but I have not yet found an answer. I am grateful for hints!

*) Shakespeare, The Winter’s Tale, Act V Scene 2

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No rubber stamp after all: EP vote on the telecoms package

Posted on May 7, 2009 | Filed Under communication technologies

The Czech Presidency of the Council had expected the European Parliament to “rubber-stamp” a compromise reached in the trialogue on the telecoms package (see this post); and I had no reason to doubt that. But surprisingly, there was dissent at yesterday’s plenary meeting of the European Parliament and, to quote Parliament’s press release, by “amending an informal agreement reached with Council, MEPs send the whole ‘telecom package’ to conciliation.”

The “dissent” only concerns the amendments on the framework directive, but as the three proposals are interlinked, it will probably keep up the complete package.

Here is a link to the texts as voted on in Parliament, more here, here or here.

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EC-commissioned study on media pluralism indicators: draft version online

Posted on May 2, 2009 | Filed Under digital content

Media pluralism is not really a favourite topic for the Commission, and understandably so: it’s not an issue that lends itself to easy answers, much less to quick fixes, and above all any policy on media pluralism worthy of its name by necessity will run into heavy criticism by the most powerful media. So I was sceptical of the efforts the Commission announced quite a while ago (see my post in this blog), and I still am. But nonetheless, I have to welcome that a preliminary version of the study on indicators for media pluralism is now online, complete with the prototype of what the authors call a “Media Pluralism Monitor”, an Excel file (plus user guide) to be filled with data from the respective member states - then showing a red, orange/yellow or green sign (here’s the dedicated website of the Commission).

Obviously, the researchers did a fine job of collecting and condensing information on possible indicators for media pluralism. I am not convinced of the Excel sheets in a lot of details, but at least the questions adressed there (and in the user guide that elaborates how one should arrive at the answers to put into the Excel sheet) give precise topics that can be discussed point by point. I would dispute the relevance of some questions (for instance I do not see any value in asking whether the respective member state has ratified the European Convention on Human Rights, much less in asking whether it also has “ratified” [!] some EC directives), and I also suspect that there is a slight tendency of bias towards more regulation and more regulatory oversight, but still every question I read so far is well worth to be asked and, hopefully, answered in all member states. [On the practical side, it would be nice to have the user guide integrated into the Excel-file, but maybe the final version will be more user-friendly]

I am sure there will be a lot of critcism, in general and in the details, but as the “media pluralism monitor” is a tool that can also be used by academics or NGOs, I look forward to a developing media pluralism discussion - and even if the Commission will not issue a recommendation, academics or NGOs could go ahead and put the indicators to a reality test.

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