New Deal, New Morning, New “New Framework”, New Anything

Posted on November 30, 2007 | Filed Under communication technologies, digital content, spectrum policy

Isn’t it good to know that - no matter what happens - there is always the one Good Shepherd Commissioner out there giving us all hope for a new and better tomorrow, or even a better today? We were already promised a New Deal (on spectrum policy) as part of a revised “new framework” (as the current framework used to be called even in 2005 - now the Commission has switched to calling it the “2002 framework” or just the “current framework”, obviously because “new new framework” sounds rather awkward).

And now, thanks to Commissioner Reding, the sun will shine brightly on audiovisual services, as they enter their new morning. So here is an excerpt of yesterday’s press release by the Commission after the European Parliament had voted on the Audiovisual Media Services Directive:

“Today the dawn of Europe’s convergent audiovisual services industry is breaking,” said Viviane Reding, EU Commissioner for Information Society and Media. “With these modernised rules that improve legal certainty and reaffirm the country of establishment principle, Europe’s audiovisual policies will better meet the demands of a fast-moving and dynamic industry while maintaining high consumer protection standards. There will be less regulation, better financing for content and greater visibility to cultural diversity and the protection of minors.“ 

So welcome out of the dark, “convergent audiovisual services” (who are you, anyway?) - and have a nice day with the new rules laid down in the revised “TV Without Frontiers”-Directive. In a few days now the Directive will be in the Official Journal (meanwhile find the text of the Common Position, which was accepted by the Commission and now by the Parliament, here), and then Member States will have two years (until December 2009) to transpose the directive into national law. So it might be a very long dawn for these services, which - if you cling to Reding’s metaphors - would mean that the sun will not rise very high.

As for the new “new framework” for electronic communications, by the way, the Commission has still not managed to put up all translations on the official website or to publish the Markets Recommendation in the Official Journal (although I guess daithí mac sithigh of lexferenda might be pleased to note that the Gaelic versions are available, so I can provide you with the name of the “Superagency” in this offical language of the European Union: “Údarás Eorpach um Mhargadh na Cumarsáide Leictreonaí”).

The Commission presented the proposals to the Telecoms Council yesterday. The press release of the Council notes agreement on the objectives, and doubts as to the Superagency, the Commission’s extended veto and the new deal in spectrum policy. Here is an excerpt of the press release:

Delegations agreed with the objectives of the Commission’s proposals. However several Member States expressed their doubts related in particular to the need for a creation of a new European Agency and to the extension of the Commission’s competence in terms of regulatory conditions or frequency administration.

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“But in conclusion put strange speech upon me”*: Council conclusions on Mobile TV

Posted on November 29, 2007 | Filed Under spectrum policy

Just a quick note from the hot air-department: Today the Transport, Communications and Energy Council meeting in Brussels arrived at conclusions on “Strengthening the Internal Market for Mobile TV”. It is a remarkable document, and if ever you’d like to say “I really couldn’t care less”, but want to make sure it sounds more agreeable, then you should take these conclusions as a reference point.

I am particularly fond of the invitation addressed to the Member States

“to make available adequate spectrum for Mobile TV broadcasting, while taking into account spectrum availability and market demand”

It seems a truly innovative approach to take account of the availability of the goods that should be made available. If there is any message in this document, it could be that the Council is not convinced that declaring DVB-H as a common standard (on Commissioner Reding’s wish-list, see the Commission Communication of 18 July 2007, plus staff working document)  is something that should be done right away (but read more for an update):

Read more

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Social services: economic activities?

Posted on November 28, 2007 | Filed Under public services

social-services.jpgLast week the Commission adopted a new Communication on services of general interest. Beyond the telecommunications and the audiovisual broadcasting sector, it covers all the other big network industries (previously organized as public monopolies) as well as a wide range of other welfare services (like education, health care, social security, social housing, etc). Traditionally in Europe such services were referred to as services of the ‘Welfare State’ (now according to the Commission: “services of general interest”).

It’s the third Communication of this type the Commission has issued, after its Communications from 1996 and 2001. It does not contain any news in particular for the telecommunications or the audiovisual media sector. Large parts which describe how the public service goal is to be pursued in these sectors can be already found in the Communication from 1996.

The changes envisaged in this Communication seem to be much more fundamental. The European Commission tries to argue that all welfare services, in particular also social services, are to be qualified as ‘economic activities’ within the meaning of the free movement rules, so that all services provided under specific ‘social’ conditions by the MS do fall under the control of this EC regulatory complex:

“In practice, apart from activities in relation to the exercise of public authority, to which internal market rules do not apply by virtue of Article 45 of the EC Treaty, it follows that the vast majority of services can be considered as “economic activities” within the meaning of EC Treaty rules on the internal market (Articles 43 and 49).”

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Chance hit or perfect shot? - ECHR on coercive detention

Posted on November 28, 2007 | Filed Under fundamental rights

koen_voskuil_nu.jpg In his recent judgement of November 22. (case of Voskuil v. The Netherlands) the ECHR had to decide whether to interfere with the rights granted under Art. 10 of the Convention through the coercive detention of a journalist was necessary in a democratic society. The alledged dutch journalist had questioned the lawfulness of the procedure conducted by the Amsterdam police in a case of arms trafficking. The police force had stated that they had coincidently found an arsenal of weapons when the caretaker of a building had called them because of a water leak in an abandonded flat. In his article for the daily newspaper Sp!ts titled “Chance hit or perfect shot?” the journalist had anonymously quoted a policeman who in respect of the flooding said:

“That is what we made out of it. Sometimes you just need a breakthrough in an investigation.“

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ECJ on the transition regime to the “new” (2002) framework

Posted on November 22, 2007 | Filed Under communication technologies

In telecommunications, the European Court of Justice - as most courts - sometimes seems to fight a rearguard action. While the Commission is busy promoting the new “new framework” and prides itself in reducing the number of regulated markets, the Court still has to deal with questions on the transitional regime to the current (2002) framework. After a simple answer to a complicated question in the case C-64/04, today the Court came up with a simple answer to a simple question (without actually saying so).  

In the case C-262/06 Deutsche Telekom, the issue was whether a statutory requirement for Deutsche Telekom, as a “significant market power-operator” (SMPO) under the former framework, to have its tariffs approved by the NRA would have to be maintained until the NRA completed the market analysis according to Art 16 of the Framework Directive.

Art 27, first paragraph, of the Framework Directive seems to be very straightforward:

“Member States shall maintain all obligations under national law referred to in Article 7 of Directive 2002/19/EC (Access Directive) and Article 16 of Directive 2002/22/EC (Universal Service Directive) until such time as a determination is made in respect of those obligations by a national regulatory authority in accordance with Article 16 of this Directive.”

Still, the German Federal Administrative Court asked for a preliminary ruling, and in doing so presented arguments that Advocate General Colomer explicitely (see No 28 of his opinion) found useful in drawing up his conclusions, which, as he also pointed out, lead to “a solution accepted by all, except - for evident reasons - by Deutsche Telekom” (rough translation, the opinion is not available in English, in the original French it is: “une solution acceptée par tous, à l’exception, pour des raisons évidentes, de Deutsche Telekom”).

So today’s judgment of the European Court of Justice did not bring any surprise in concluding:

“The first paragraph of Article 27 of Directive 2002/21/EC […] and Article 16(1)(a) of Directive 2002/22/EC […] must be interpreted as meaning that a statutory requirement for the approval of tariffs for the supply of retail voice telephony services provided by undertakings with a dominant position in that market, such as that provided for in [the German Law on Telecommunications of 25 July 1996], enacted by national law and preceding the regulatory framework resulting from those directives, together with administrative measures confirming that requirement, must be temporarily maintained.”

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Update on the Audiovisual Media Services Directive

Posted on November 18, 2007 | Filed Under digital content

While the reform proposals for the carrier-issues of electronic communications have just been launched into the complicated co-decision procedure, the proposal for reforming the content-side is nearing its final adoption. The directive amending the “Television without Frontiers”-Directive - and renaming it to be called “Audiovisual Media Services Directive” - could finally be adopted by the end of November. After the political agreement on a common position of the Council in May, the formal decision on the common position was taken on 15 October 2007; the Commission, as agreed before, accepted the changes in its communication of 18 October 2007.

On 13 November 2007, the Committee on Culture and Education of the European Parliament voted to approve the common position, so that the plenary of the European Parliament is expected to approve the directive in its session on 29 November 2007.

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Shortlisted: the future Director of the “(Not so) Superagency”

Posted on November 14, 2007 | Filed Under communication technologies

get readyIf you had to find the person best suited to lead the soon to be created European Electronic Communications Market Authority, what would you prefer:

  • a call for expression of interest, published in the Official Journal of the European Union and elsewhere, followed by an open competition, leading to a list of candidates proposed by the Commission, from which to choose the Director on the grounds of merit and documented administrative and managerial skills, as well as competence and experience relevant for electronic communications networks and servies, or
  • a very short shortlist of at least two candidates proposed by the Commission, from which to choose on the basis of merit, skills and experience relevant for electronic communications networks and servies?

The first option was in the draft, the second option is in the proposal decided by the Commission. And taking into account that according to the draft the choice would have been made by an Executive Board consisting of the heads of 27 national regulatory authorities, while according to the proposal the choice is up to an Administrative Board, consisting of twelve members, half of which are appointed by the Commission (the other half by the Council), this sends a clear signal of the real distribution of power in the proposed new Authority.

What is really new in the proposal is the integration of ENISA, the “centre of excellence” for network and information security that obviously is considered not excellent enough in its own right (as the recitals state, “a number of problems were identified” by an external expert evaluation). What the proposal does not say is whether the ENISA-office in Heraklion, Crete, will remain or whether ENISA-staff will have to relocate to a less sunny place. Of course, the issue of location will be left to last minute political deal-making, as most likely will be the appointment of the Director (and even if a call for interest might not mandatory, a few candidates are said to have expressed their interest already).

And one aspect that I find particularly interesting is that the proposal explicitely provides for the possibility (prospect?) of “voluntary contributions from the Member States or from their regulatory authorities” to the revenues of the Authority. So when (just for example) the UK is not satisfied with the way another Member State is conducting or not conducting the market analysis, it may contribute some funds for the Authority, in addition to the temporary staff already assigned to it from Ofcom, so that the Commission will be in a better position to invoke the new Article 16 (7) of the Framework Directive and ask the Authority to carry out the market analysis in lieu of the national regulatory authority.

In my imagination, I see Ofcom-SWAT-teams in dark suits and sunglasses descending on some European capital cities to carry out their mission …

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“Here’s the commission: read it at more leisure”* 2007 Reform of EU Telecom Rules

Posted on November 13, 2007 | Filed Under communication technologies

Reding’s review, reform or revolution, whatever you may call it, is finally here: go here to access all the documents at DG Info’s Website, or take the following quick links to go directly to those things of most interest to you:

If you are interested in the usual hyperventilation of Reding’s press releases, go here, for simple answers to rhetorical questions read the FAQs at the Commission’s press room.

And if you want to compare the proposals with what DG Info had drafted, see the drafts at the end of this earlier post.

We will come back to some of the issues over the coming weeks.

*Shakespeare, Hamlet, Prince of Denmark (Act V, Scene 2)

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DG Disinformation Society? Ombudsman finds “maladministration”

Posted on November 11, 2007 | Filed Under communication technologies

silence “Seal up your lips, and give no words but mum: The business asketh silent secrecy.” Are these words from Shakespeare’s King Henry VI (ii) part of the real mission statement of the Commission’s DG Information Society?

In an earlier post I mentioned my request for access to certain ERG-documents, which I made more than a year ago in October 2006. I had applied for access to two reports, both of which were - due to my request - subsequently published in part (here and here+here). And I applied for access to a “submission note” (a brief document summarizing a report, to be tabled at an ERG-meeting), and finally for the list of attendance at the relevant ERG-meeting. A simple story, and yet it splits into four seperate issues (and it is not finished yet):

  1. The basic requirements of Regulation (EC) 1049/2001: getting access within the specified time-frame, getting advance information if an extension of the deadline is necessary, and getting detailed reasoning for the extension. The Commission failed on this account - and you can read the details in the Decision of the European Ombudsman on complaint 3697/2006/PB, finding maladministration in DG InfoSoc.
  2. Getting access to the complete reports: the issue is still unresolved (the Commission denies access to data that I believe should be in the public domain; the reason given by the Commission is that the NRAs [!] of Switzerland and Austria requested so); a complaint with the European Ombudsman is pending.
  3. Getting access to the list of attendance of the ERG-meeting: this was flatly rejected by DG Info on account of protecting “personal data privacy and the integrity of the individual” (obviously, DG Info thinks the heads of the NRAs or their substitutes travel to all the lovely places where the ERG meets in a private capacity). I have not followed that up with a complaint, but it is nice to note that just two days ago the Court of First Instance decided the Case T-194/04 Bavarian Lager, coming to the conclusion that the Commission had “erred in law” by rejecting a request to obtain the names of lobbyists that had participated in a meeting with the Commission. The Court stated that “the mere participation of a representative of a collective body in a meeting held with a Community institution does not fall within the sphere of that person’s private life, so that the disclosure of minutes revealing his presence at that meeting cannot constitute an interference with his private life.” If that holds true for business contacts with the Commission, it should be all the more valid for meetings of the Heads of NRAs within ERG.
  4. Getting access to the submission note: this is not an important document, as I found out by receiving it recently (not from the Commission, but from readers of this blog, who also supplied the full reports - thank you for that, anonymous mailers!). But the interesting thing is that the Commission - in a recent letter to the European Ombudsman - contends that it doesn’t even exist! A very interesting viewpoint, given the fact that ERG-documents, even if not published, are widely distributed and by some mysterious coincidence always seem to find their way to the industry, but just not to those who formally ask. Luckily - thanks to you, readers - I was able to mail a copy of the supposedly non-existent document to the Ombudsman for further investigation.

Is all this “silent secrecy” really the best way to act for a Directorate-General that is called “Information Society and Media”?

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“I hope good luck lies in odd numbers”*: 116111 and 116123

Posted on November 5, 2007 | Filed Under communication technologies

SOSNo, the numbers mentioned above of course are not just odd numbers, they are the new “harmonised numbers for harmonised services of social value”, according to the Commission Decision 2007/698/EC of 29 October 2007 amending Decision 2007/116/EC as regards the introduction of additional reserved numbers beginning with ‘116’. The new decision not only establishes the numbers 116111 for “child helplines” and 116123 for “emotional support helplines”, it also adds a description for the service to be offered under the number 116000 (”hotline for missing children”) and sets specific conditions for all three services. National regulators have to be able to assign the newly added numbers 116111 and 116123 by 29 February 2008.

Interestingly, the specific conditions attached to the right of use for these numbers differ: the service offered at the “hotline for missing children” has to be continuously available (24/7, “nation wide” - which probably means in the whole territory of the Member State assigning the number, as the change in the annex from “hotlines” to “hotline” also indicates that there can only be one such “hotline” per Member State). The other two services (called “helplines”, not “hotlines”) do not have to be continuously available; during periods of unavailability they have to advise callers when the service will next become available.

I have already expressed doubts as to the legal basis for this decision; Art 10 (4) of the Framework Directive - on which the Commission (in accordance with the Communications Committee) rests the decision - reads as follows:

“Member States shall support the harmonisation of numbering resources within the Community where that is necessary to support the development of pan European services. The Commission may, in accordance with the procedure referred to in Article 22(3), take the appropriate technical implementing measures on this matter.”

In the draft proposal for a revised Framework Directive, this paragraph reads:

“Member States shall support harmonisation in numbering within the Community where that promotes the functioning of the internal market or supports the development of pan European services. The Commission may take the appropriate technical implementing measures on this matter, which may include establishing tariff principles for specific numbers or number ranges.
Those measures designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22 (3). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 22(3a).”
[significant changes indicated in bold]

Tariff principles of course are already part of the decision on the 116-numbers: Art 3(d) requires that “there is no payment, or payment commitment as a prerequisite to use the service”. But when it comes to doing good - and that is what these new odd harmonised numbers are about - questions as to the legal basis obviously are not a real concern.

With the new decision, the Commission follows up on its consultation (read the replies here), where substantial input stressing the potential pan-European nature of the services came from INFOTES (International Federation of Telephone Emergency Services) and Child Helpline International. To my surprise, the proposal of the German “Sperr”-Association, which runs the German hotline for blocking electronic authorisations such as credit cards and debit card in cases of emergency, was not taken up by the Commission: is it not “European” enough, or did it not show a sufficient “social value”?

Anyway, and all doubts as to the legal niceties aside: I do hope that for the providers of these services, and especially for their clients, that good luck will lie in these odd numbers.

* Shakespeare, The Merry Wives of Windsor, Act V, Scene 1

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