Flexibility strikes back?

Posted on July 26, 2007 | Filed Under spectrum policy

zero.jpgAlthough the Commission recently seemed to have accepted that flexibility in spectrum use is not the key to everything, yesterdays press-release on innovative wireless services quotes the EU’s Telecoms Commissioner Viviane Reding saying:

“This proposal is a concrete step towards a more flexible market driven approach to spectrum management in Europe.”

Reding refers to a proposal by the Commission to repeal the GSM Directive of 1987 to be reserve frequencies for the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community. The idea behind is to open the radio frequencies for advanced mobile data and multimedia services (such as 3G services) formerly allocated exclusively to GSM services (900 MHz and 1800 MHz).

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Of general interest: Complaining about communications services

Posted on July 25, 2007 | Filed Under communication technologies, public services

Services of General Economic Interest

There has been a lot of interest lately in “Services of General (Economic) Interest”. The Commission has recently published - as a staff working document - an Evaluation of the Performance of Network Industries Providing Services of General Economic Interest (plus Annex, for older reports see here), which is a very basic and broad review, comprising telecommunications, electricity, gas, transport and postal services. Although published in July 2007, the information on the Commission’s activities does not go beyond 2006, so you will read for instance of the proposal for the Roaming Regulation without getting the inforamtion that it has since been adopted and entered into force. Also, the document - in July 2007! - announces that “the Commission is expected to present early in 2007 its follow up on the White Paper on services of general interest. Well, you cannot meet all expectations.

But services of general interest merit also a close look from consumer policy: today the Commission also published three studies studies that cover services of general interest such as energy, telecommunications, postal services and transport, but also other services such as water and banking (see the press release).

First there is a study on overall consumer satisfaction with these services (here), then there is a special Eurobarometer (here), covering issues such as access, use, affordability, importance, and also satisfaction, and finally there is qualitative study (here), drawing on interviews with “average” and “vulnerable” consumers, also in remote areas.

I am not yet sure what to make of all the information contained in these studies. At a first glance, some of it is evident (main use of fixed line telephony is for making phone calls) or trivial (”we observe a substantial sense of attachment to all services of general interest”), and some of the data seem contradictory - since all three studies touch the issue of consumer satisfaction, it is interesting to note how the degree of satisfaction varies between the studies. But much of this certainly can be explained by a closer look at the methodology (for instance, there is more information on the satisfaction indicators to be found here), and in fact, buried amongst the wealth of detail, there is some quite interesting information to be gained from these studies. So here are just three short quotes from the Eurobarometer:

“It is perhaps interesting to note that the levels of complaint for communications services (mobile, fixed line and internet) are twice as high - or more - than for the other six services of general interest covered by this report.” (p 123)

“When respondents were asked about how well their complaint had been handled, levels of satisfaction were, for the most part, disappointing with, in most cases, around half the poll saying that their complaints had been dealt with badly.” (p 158)

“When respondents were asked whether they considered their contracts with their service providers to be fair, in certain service sectors (e.g. telephony), there were relatively high numbers of people who were not aware of the terms and conditions of their contracts.” (p 158)

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Let’s come together

Posted on July 23, 2007 | Filed Under digital content

love_21.jpgThe European Commission has launched a new channel on YouTube, named EUtube. The intention was to make use of an innovative way of communicating Europe to the citizens. As Commission spokesman Mikolaj Dowgielewicz put it: “[…] It’s part of our strategy to use the tools that people use.” Sounds like a good strategy.

And it’s really worth a look. It’s a nice collection of EU’s audiovisual material, not too spectacular. You can find videoclips:

  • on EU’s first post-war historical steps and its development since then, i.e. “50 years EU in the world” (nice pictures), or
  • on current environment concerns, i.e.“50 years of Protecting Europe’s Environment” (not very imaginative as to the title, just as little as: “Everyone can save the planet”, otherwise ok), or
  • on EU’s campaign against smoking or against AIDS (“Aids remember me” – what a title is this?), or i.e.
  • various ads of http://ec.europa.eu/information_society/media/index_en.htm (Europe’s support programme for the European audiovisual industry), which were meant to promote the launch of the EU’s new MEDIA programme 2007-2013.

Best rated by EUTube users so far (at least it provoked the most comments) is one of these ads of MEDIA. At EUTube it’s entitled “Film lovers will love this”, in original it’s called “amour 2”. Best described by papaciiito: “sex sells and europe needs more sales in movies thanks in part to the insane amount of publicity advertising American movies, good and bad.” The slogan of the ad: “Let’s come together” (better in German:”Wir stecken mit drin”) … communicating Europe to the citizens.

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Cold case: Commission closes proceedings against past roaming tariffs

Posted on July 20, 2007 | Filed Under communication technologies

Good advice for any company facing antitrust proceedings for an abuse of a dominant market position: get the Commission to propose legislation specifically targeted at preventing such abuse!

I’m serious: the Commission just closed the competition proceedings opened against Vodafone UK, O2 UK, Vodafone Germany and T-Mobile Germany regarding the roaming tariffs applied to other European mobile network operators up to 2003 (see the press release). Content that the new Roaming Regulation “addresses the same issues as those raised in these antitrust cases, and clearly resolves them for the future”, the Commission obviously sees no need to further pursue past breaches.

And I have to admit that once more I cannot resist another Shakespeare quote (from Antony and Cleopatra, Act IV, Scene 15), summing up the Commission’s approach:

“Come, away: This case of that huge spirit now is cold”

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Getting (cost)oriented in a maze of questions: Advocate General’s opinion in the Arcor Case

Posted on July 19, 2007 | Filed Under communication technologies

street cabinetAdvocate General Poiares Maduro - who in his opinion in the case C-426/05 Tele2UTA used the parable of a blind person leading another blind person out of a maze - had to address a different kind of orientation problem in his opinion in the case C-55/06 Arcor, which was delivered yesterday. The Administrative Court of Cologne had requested a preliminary ruling on “a lengthy series of questions which could usefully be reformulated” (as the Advocate General remarks in his opinion); “these questions take an extremely exhaustive and wide-ranging approach to a whole range of problems relating to and surrounding the concept of charges set on the basis of cost-orientation.” The questions concern only the “Unbundling Regulation” (2887/2000), which is nominally still in force, but - due to Article 27 of the Framework Directive - has lost almost all of its one-time practical relevance (the regulation has practical effect only in those Member states, where the market analysis procedure - for market 11 - has not been completed yet; see here for the latest chart drawn up by DG INFSO). Still, the concept of cost-orientation carries quite some weight even within the new framework, where it can be imposed as a remedy (”specific obligation”) by regulatory authorities. So even if the Unbundling Regulation is largely history, the interpretation of the term “cost-orientation” remains of interest. However, it is not easy to find its “true” meaning, as the Advocate General reminds us:

“Certain legal concepts promise much and appear to be very useful, but may, none the less, simply become words largely devoid of meaning and effect. There is a risk that the concept of cost-orientation, as provided for in Article 3(3) of the regulation, may be one of those concepts.”

But - be not afeared - the Advocate General does find meaning and effect - even if some of his words (such as: “based on a balanced and proportionate compromise” in number 73 of the opinion) promise much and appear to be useful, but may, none the less ….

Here are some key findings from the opinion:

  • Cost-orientation - “an autonomous concept of Community law” (number 31) - is not defined in the Regulation (nor elsewhere); this “leaves the Member States an inevitable margin of discretion in implementing this concept” (number 35).
  • Imputed interest and cost-accounting depreciation is to be included (number 44).
  • As to the methods of calculation, the Advocate General takes an interesting position: in general, “gross replacement cost” may be used, but the decision of the NRA “cannot leave any room for doubts as to whether a balance has been struck between creating investment incentives (which the adoption of such a method is clearly intended to achieve) and the fostering of competition on the market for local loop access” (number 55); so charges could be set at a figure below gross replacement costs (see number 73 of the opinion for the details).
  • “The principle of cost-orientation refers first and foremost to the notified operator’s costs” (number 84), “the notified operator’s accounts provide the only possible starting-point for establishing those costs.” But the “hybrid use of a bottom-up analytical model together with a top-down model” is accepted (number 77).
  • “When assessing whether charges have been set on the basis of cost-orientation, the national regulatory authority has a margin of discretion with regard, in particular, to the method used to calculate the costs and also to issues relating to the determination of imputed interest and reasonable depreciation periods. Effective judicial review of a rates approval decision must make it possible to ascertain whether or not the rates approval decision in question is in breach of the aims of the regulation and the criteria of non-discrimination and equal treatment. It must also make it possible to ascertain whether the limits arising from the interpretation of the Community concept of cost-orientation have been respected and, in particular, whether the decision shows that an appropriate balance has been struck between the essential aim of fostering competition within the local network and the aim of ensuring the necessary level of investment in infrastructure.” (Number 101).
  • “Community law requires that competitors as beneficiaries of the right of access to the notified operator’s local loop have the right to bring proceedings to contest rates for access approved by a national regulatory authority, on the ground that they were not set on the basis of cost-orientation.” (The Advocate Generela explicitely refers to his opinion in the Tele2UTA case which addresses the issue under the new framework).

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cross-border freedom of expression … yet the sum of things remains unchanged

Posted on July 19, 2007 | Filed Under digital content, fundamental rights

fernweh-3-web.jpgIn a speech given at a press conference on the occasion of the conclusion of a Framework Agreement between the International Federation of Journalists and WAZ Mediengruppe Commissioner Reding mentioned the successful promotion of cross-border freedom of expression and freedom of information in the audiovisual sphere by the “Television without Frontiers” Directive, allowing cross-border transmission of television channels in accordance with the law of the country of origin and without the receiving country being able to prohibit that transmission.

“The new “Audiovisual Media Services without Frontiers” Directive, agreed by the EU institutions in May […], extends cross-border freedom of expression and freedom of information to on-demand services regardless of how they are transmitted. This is of central importance not only for Europe’s single market, but also for the formation of a democratic and pluralistic opinion and information area in Europe.”

However, according to Article 2a paragraph 4 of the avmsd the Member States may take measures to derogate from the country of origin principle in respect of a given on-demand service if the measures shall be necessary for one of the following reasons:

  • public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or
    nationality, and violations of human dignity concerning individual persons,
  • the protection of public health,
  • public security, including the safeguarding of national security and defence,
  • the protection of consumers, including investors;

With these broad exemption clause the extended cross-border freedom of expression and information for the time being remains a well-meant promise whose fulfillment depends on its handling by the Member States. Although I cannot come up with a Shakespeare quote I’d like to refer to Ovid (43 BC - 17 AD) and his Metamorphoses: “… yet the sum of things remains unchanged.“

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Standardizing Flexibility?

Posted on July 18, 2007 | Filed Under spectrum policy

Who was it said:

“Our plan … foresees giving spectrum users more flexibility in deciding how to use the radio resources … flexibility will allow the market to decide about the usage made of radio resources.”

And who now proposes “to legally encourage” the use of an official single standard for a specific radio service, even possibly “mandating” its use?

You mght have guessed it: it’s Commissioner Viviane Reding again - the first quote is taken from a speech at a broadband conference last year, and the second quote is from today’s press release on the new Communication “Strengthening the Internal Market for Mobile TV” .  DVB-H will become a new official standard for mobile television, as has been widely expected for some time, and the Commission is thinking about harmonising a sub-band for mobile TV “within the digital dividend”.

It even looks like the Commission has finally accepted that flexibility in spectrum use is not the key to everything, when it states that

“There is a need for the Member States and the European Commission to reflect together in order to agree a spectrum policy that responds to the high level of coordination desired by consumers and industry.” [emphasis added]

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“Shall I search the market?” Commission communication on market reviews

Posted on July 12, 2007 | Filed Under communication technologies

It’s a strange world as seen from Brussels: just recently, Commissioner Reding assured us that the last borders to the internal market were abolished - and today she tells us that the single market is still far away. Well, every truth serves a purpose, and today’s truth is that where the Commission intervenes, everything is just about fine, and where the Commission cannot intervene, it should be able to do so in the future. At least this is how I would summarize the latest Communication from the Commission on market reviews under the EU Regulatory Framework (2nd report) - Consolidating the internal market for electronic communications, COM(2007) 401 final. But here are the Commission’s own words:

“[…] the involvement of the Commission allowed to achieve a high degree of consistency regarding market definition and market analysis. The experience […] shows that this continues to be the case.”
“Regarding the choice of remedies, the Commission observes less consistency across the EU than has been achieved in market definition and SMP analysis.”

Remember: in market definition and market analysis, the Commission can effectively ”veto” a decision by a national regulatory authority, whereas it can just comment on the remedies.

Now guess what the Commission will propose in October (or rather: in the “second half of 2007″, as the communication now puts it - from which I take that in the slipping timetable October might not be certain after all) ? The communication does not need to state it explicitely, it suffices to say the following:

“During the public consultation on the review of the EU regulatory framework it was suggested that the Commission could play a stronger role in the coherent application of remedies.”

The communication is accompanied by an extensive staff working document detailing just about every notification under the Article7-procedure.

PS: The title of this post - “Shall I search the market?” - is taken from Shakespeare, Pericles, Prince of Tyre

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Pride and prejudice? Catalysts of national cultural identity

Posted on July 12, 2007 | Filed Under digital content

Vienna OperaWhat are catalysts of cultural identity in the EU Member States? National traditions of opera, theater, fine music, literature, the arts? Not really: reading the decisions of the European Commission on the “listed events” notified by the Member States under Article 3a of the television without frontiers-directive, published in the Official Journal of 10 July 2007, the following catalysts of cultural identity can be identified:

So with the exception of Belgium, it’s all sports - and when the issue of national pride is raised, it’s all sports again. According to the Commission decisions, the following items are important for national pride:

The decisions by the Commission - taken for lists notified by Italy, Germany, Austria, Ireland, Belgium, France and Finland (update: and the UK) - were motivated by a judgment of the Court of First Instance of 15 December 2005, T-33/01 Infront WM AG. The CFI had stated,

“It is clear […] that under Article 3a(2) of the directive the Commission has the power to make a decision […] notwithstanding the fact that Article 3a of Directive 89/552 does not expressly refer to the adoption by the Commission of a ‘decision’.” (Nr 107)

So the Commission has to take a formal decision on the notified lists, instead of just publishing them in the C series of the Official Journal, as it used to do. The judgment of the CFI has been appealed by the Commission (C-125/06), but is still pending at the ECJ (update: the ECJ upheld the CFI’s decision: judgment of 13 March 2008, C-125/06 P).

The complete lists of events can be found here (updated 29 March 2008) ; a quick survey on the type of events is here - one result is that the Summer Olympic Games, Football World Cup and European Football Championships are listed in all eight countries - and only Belgium, Italy and Austria have listed “non-sports” events.

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Spectrum policy: “An appropriate degree of flexibility” by the Commission

Posted on July 4, 2007 | Filed Under spectrum policy

BarcelonaThe World Radiocommunication Conference 2007 (WRC 07) is coming up this October/November - and it will - amongst other business - also discuss and decide a lot of mostly technical details in the Radio Regulations. The European Commission, to its regret, is not a key player in this international game, where decisions are taken by the ITU members, which include all EU Member States, and regional European concerns are coordinated within CEPT. But spectrum policy at EU-level has gained momentum in the past few years, starting with the Radio Spectrum Decision, which is part of the regulatory framework for electronic communication networks and services. The Commission tries hard to get a stronger grip on spectrum policy altogether. And while the legislative proposals for a new framework - which will address spectrum policy in far more detail than the current framework - have been put off until October, the Commission saw it fit to publish a Communication concerning the WRC 2007 (Com(2007) 371 final).

Considering the usual pace of such conferences and the long months and even years of preparation, the communication comes rather late - but it obviously is not aimed at influencing the hard core technical work of the experts participating in the WRC 07. Rather, it serves as a reminder to Member States that the outcome of WRC 07 will affect Community policies in a number of fields. The Commission points out that - as a non-voting sector member of the ITU - it will “endeavour to support those European common positions which are in line with and relevant to Community policies” (which implies that there might be European common positions that are not in line with Community policies).

The positions taken in the communication are not really surprising: stating a clear demand for additional spectrum for mobile communications, the Commission looks both at the C-band (3.4-4.2 GHz) and the UHF-Band (currently used for TV-broadcasting). The Communication repeats the Commission’s mantra of the digital dividend in the UHF-band, that spectrum released by the switchover from analogue to digital TV-broadcasting could be exploited also for mobile communications. In this context, the Communication points out:

“The Radio Spectrum Policy Group has also advised the Commission to promote the advantages of introducing an appropriate degree of flexibility in the use of this band in order to cope with future technology breakthroughs as well as evolving market demands.”

In a footnote, the Commission gives the Radio Spectrum Policy Group’s Opinion on the Digital Dividend of 14 February 2007 as source for the purported advice. The problem is: the advice is not there. The closest to saying there should be more flexibility is the following paragraph from the opinion:

“The RSPG considers that many promising new services fostering growth and innovation are seeking urgent and easy access to the UHF and VHF spectrum, among other bands. In this context, European action to enable the development of such services in these bands must be taken in a way that optimizes the use of spectrum as a whole, promotes and does not distort competition, encourages innovation, maximises benefits across the European Union, and does not conflict with national and European content legislation aiming at promoting cultural diversity and media pluralism.”

The RSPG also stated that:

“In the band 470 – 862 MHz, the RSPG notes that there may be EU-wide benefits to the use of the digital dividend by broadcasting services. The current international regulatory framework, as settled by the Radio Regulations and the GE-06 Agreement, provides an appropriate framework for this development.”

Maybe one should check the other references in the footnotes of the Communication as well.

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