Objective, transparent, etc.: The Spectrum-Assignment Mantra, ECJ-approved

Posted on January 31, 2008 | Filed Under spectrum policy

It is a well-known mantra: the granting of spectrum usage rights has to be based on objective, transparent, non-discriminatory and proportionate criteria. So obviously the assignment of frequencies for broadcasters should not be done in such a way as to create a “situation in which the rights of new entrants are rendered nugatory in the face of the entrenched rights of the incumbents” (as advocate general Poiares Maduro had pointed out in his opinion in the case C-380/05 Centro Europa 7)

Today, the European Court of Justice confirmed this mantra in the judgement delivered in the Centro Europa 7-case (for a brief summary of the case see this post):

Article 49 EC and, from the date on which they became applicable, Article 9(1) of the Framework Directive (2002/21/EC), Article 5(1), the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive (2002/20/EC), and Article 4 of the Competition Directive (2002/77/EC) must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.

The ECJ accepts a licensing system for broadcasters which restricts the number of operators in the national territory, on condition that it is justified by general-interest objectives and that the restrictions are appropriate and do not go beyond what is necessary to attain those objectives. Any such arrangements must also be structured on the basis of objective, transparent, non‑discriminatory and proportionate criteria. These requirements also apply for the granting of individual rights to the use of radio frequencies.

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File-Sharing: One more question for the ECJ!

Posted on January 29, 2008 | Filed Under communication technologies

In the Promusicae-Case - see the previous post - the European Court of Justice had to decide whether member states where required to provide for personal traffic-data to be passed on to copyright holders by a telecoms operator. In its judgement, the Court clearly stated that there was no obligation to do so and cautiously pointed to the proportionality principle as a “limiting factor” for any such obligation that national law might stipulate.

In Austria, where the Copyright Act contains a provision that seems to include the obligation of service providers to pass on personal data concerning their customers, the Supreme Court of Justice meanwhile decided to put another - complementing - question to the ECJ: does the e-privacy-directive allow the communication of such personal data to the copyright holder?

The full questions (very roughly translated!) are here (for the German text of the Supreme Court’s request for a preliminary ruling see here; I do not yet have the case number at the ECJ and there has not yet been a publication in the OJ; Update 25.02.2008: the request is now online, Case C-557/07 LSG):

“1. Is the term ‘intermediary’, as used in article 5 (1) a and article 8 (3) of the directive 2001/29/EC to be construed in such a manner as to include an access-provider who provides only for access to the network by assigning a dynamic IP-address, but does not provide other services such as e-mail, FTP or a file-sharing-service and who does not exercise control over the services used by its customers?

2. If the answer to the first questions is yes: Is article 8 (3) of directive 2004/48/EC, taking into account article 6 and article 15 of directive 2002/58/EC, to be construed (restrictively) so as to not allow the communicaton of peronal traffic data to private third parties intending to pursue copyright infringements in a civil court?”

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“Keep law and form and due proportion”* - ECJ on IP-addresses for IP-rights

Posted on January 29, 2008 | Filed Under communication technologies

Today, the European Court of Justice gave judgment in the case C-275/06 Promusicae. The Grand Chamber of the Court ruled that Member States are not obliged to require telecoms operators to pass on personal data (IP-addresses of the users of P2P-services) to copyright holders in order to ensure effective protection of copyright in the context of civil proceedings. The Court does not, however, completely rule out that such obligations may be set in national law, but stresses that Member States have to

“take care to rely on an interpretation … which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives [2000/31/EC, 2001/29/EC, 2004/48/EC, 2002/58/EC], the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”

Stressing the principle of proportionality, the Court takes up an issue that was dealt with more in depth in the opinion of advocate general Kokott. In number 119 of the opinion (not yet available in English) she pointed out that

“Par conséquent, la possibilité de communiquer des données à caractère personnel relatives au trafic peut être limitée à des cas particulièrement graves, comme, par exemple, aux actes commis dans un but lucratif, c’est-à-dire à une utilisation illégale d’œuvres protégées qui porte lourdement atteinte à leur utilisation économique par le titulaire du droit.”
(Roughly translated: “Therefore, the possibilty of communicating personal traffic data could be limited to particularly serious cases, as for example acts with the aim of making a profit, i.e. an illegal usage of protected works which severly harms their commerical use by the rights holders.”)

*Shakespeare, King Richard II, Act III, Scene 4

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“For some must watch,

Posted on January 22, 2008 | Filed Under communication technologies

while some must sleep: So runs the world away.” (Shakespeare, Hamlet, Act III Scene 2)

Commissioner Reding, ever vigilant, welcomed the ERG roaming report (see previous post here) in a recently issued press release, and announced that there will be a report at the end of this year “on whether the charges for [SMS and data roaming] services also need to be regulated.”

Meanwhile, the Commission, which “followed developments closely over the summer” of 2007 (see here), will continue watching in 2008. This year, it will even “watch developments very closely”, and it will “respond appropriately” (and not, as one probably should have expected, ignore what it might see).

In a speech given in Munich on 21 January 2008 (I have not yet seen a transcript), Reding - according to press reports - not only criticized French president Sarkozy’s plan to “tax the internet” (and mobile services), but also expressed anger at “incapable” national regulators (according to this report [German only]), blaming them for not bringing down data roaming charges fast enough.

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ICANN’s quest for independence

Posted on January 21, 2008 | Filed Under communication technologies

icannlogo.jpgThe Internet Corporation for Assigned Names and Numbers (ICANN) who coordinates the global Internet’s systems of unique identifiers by allocating and assigning domain names and IP addresses amongst others, wants to become fully independent according to a statement by Peter Dengate Thrush , chairman of ICANN’s board of Directors. Originally the ICANN as it is known today was created through a Memorandum of Understanding between the U.S. Department of Commerce and the ICANN - a private NPO - thereby taking the first step to withdraw the management of the Domain Name System away from the U.S. government and transfer it to the global community (see the White Paper that got it all started here). The Memorandum was followed by several Joint Project Agreements (JPA) between ICANN and the United States Department of Commerce. In response to the midterm review of the current JPA the ICANN itself opts for ending the Agreements, as it

contributes to a misperception that the DNS is managed and overseen on a daily basis by the U.S. government.

However, Trush did not address the most delicate question: To whom should a future fully private ICANN be accountable? Read more

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Billable Minutes: ERG Roaming Data

Posted on January 17, 2008 | Filed Under communication technologies

The European Monitors Regulators Group today published its “ERG benchmnark data report” on International Roaming, comprising data from April to September 2007. Surprise: after the Roaming Regulation took effect, the average retail charge across Europe for voice roaming calls went down (a full 7 cents for calls made, 4 cents for calls received - but then the time frame of the report does not yet include a period of full applicability of the regulation).  The report informs us that:

“There was also an indication that billed roaming minutes exceeded actual elapsed minutes by a sihgnificant margin (typically 20% at the retail level) as a consequence of the practice of many providers of adopting a minimum charging interval of up to 1 minute at both the wholesale and retail level.” (nothing is ever an outright fact in such documents, but it seems at least to be a strong indication)

So what guidance would the ERG give on that issue? None (as previously reported), or better: continue monitoring. The ERG also proudly released today its Final Version of the ERG Guidelines  on the “International Roaming Regulation”. The Guidelines basically are a rewording of key elements of the regulation, with very limited extra information or guidance offered by the ERG. No wonder that there were just “limited responses to the previous releases”, as the introduction to the guidelines point out. So, obviously, no one bothered even to change the title (there is still no “International Roaming Regulation”), or to add a little more information. And on the issue of the “billable minutes”, the guidelines remain as vague as in the first two releases: “ERG takes the view that the matter can be left to market players to adopt a convenient charging interval.” (Of course only on condition that it is not longer than one minute, which would be in flagrant violation of the regulation). Very convenient for the ERG, but very little guidance for anyone.

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Public Service Broadcasters - Contracting Authorities under the Public procurement rules?

Posted on January 12, 2008 | Filed Under public services

The ECJ confirmed – unsurprisingly – that public service broadcasters are to be seen as contracting authorities (‘bodies governed by the public law’) which fall under the public procurement rules. The German public broadcasters tried to argue otherwise, claiming that as public broadcasting service is financed for the most part by the fee paid by the television viewers they do not fulfill the requirement “public funding’ or ‘public control’ as set out in the Public Service Contracts Directive on the definition of a ‘body governed by public law’. The ECJ couldn’t follow this rather formalistic view. The fact that as a matter of law individuals are obliged to pay the fee is sufficient reason to hold that the condition of ‘financing … by the State’ of the activity of the public broadcasting bodies in the sense of the public procurment rules is satisified – so the ECJ.

This decision – at least implictly – also sheds light on the question whether licence fee financing does qualify as a State resource within the meaning of the State aid rules. This has been contested (here again in particular by Germany) based on similar reasons as brought forward in the above described case. Referring in particular to the ECJ case PreussenElektra it’s argued that the State aid character cannot be simply based on the compulsory character of the fee, nor the fact that the collection of the fee is governed by public law. The ECJ obviously has a different view on that. Soon it will have to decide on it also explicitly. See the Case C-305/07 .

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“Let us consult upon to-morrow’s business”*: public service broadcasting and state aid

Posted on January 11, 2008 | Filed Under public services

Public Service Broadcasting and state aid has been a contentious issue over the past few years. In this document, the Commission’s DG Comp lists (and links to) 20 decisions taken by the Commission between 1998 and 2007, providing a useful overview of the state of play - especially for pending inquiries. Some guidelines are contained in a 2001  “Communication from the Commission on the application of State aid rules to public service broadcasting”.

Now this communication will be reviewed: On 10 January 2008, the Commission published a consultation document (plus explanatory memorandum, and a press release), giving two months for responses and announcing a revised communication for the second half of 2008.

* Shakespeare, King Ricard III, Act V, Scene 3

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Wrong presumption - wrong prediction: Finland succeeds at the ECJ

Posted on January 10, 2008 | Filed Under communication technologies

A few days ago, as I made a quick preview on upcoming electronic communications cases at the ECJ, I thought the Commission was set to easily win the case C-387/06 Commission v. Finland, concerning the powers of the Finnish NRA. I was wrong: in today’s judgment (available only in French and Finnish at the moment), the Commission’s claim was rejected.

Luckily I had pointed out in my post that I had relied only on the summary of arguments by the Commission that was published in the Official Journal, and my prediction was based on the presumption that the basic facts presented by the Commission - that Art 43 of the Finnish Act limited the power of the NRA to regulate mobile termination rates - was true.  It turns out that this assumption was wrong. In fact, Art. 43, fourth indent, of the relevant Finnish Act reads (in French):

“Il n’est toutefois pas nécessaire de spécifier un prix distinct pour le trafic entrant lorsque la connexion est établie à partir d’un réseau fixe vers un réseau mobile, sauf si elle a été établie à l’aide d’un indicatif ou d’une présélection”
(roughly translated: “However, it is not necessary [for the telecoms operator] to specify a distinct price for incoming traffic when the connection is established from a fixed to a mobile network, except when the connection is established using a carrier access code or preselection.”)

As the Commission rests its case only on Art 43 (fourth indent), the Court concludes that the Commission has not sufficiently demonstrated how this provision affects the powers of the NRA. It is the Commission’s task, however, to to prove the allegation that the obligation has not been fulfilled.  

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A close enemy can become a close friend - Apple and COM set off towards a pan-European marketplace for music togehter

Posted on January 9, 2008 | Filed Under competition/mergers/state aid, digital content

index_hero20070905.png The European Commission does not intend to take further action in the antitrust proceedings against Apple. The relevant case originated in a formal complaint by the UK consumer protection organisation which?, because of higher prices in the UK itunes store compared to other european countries (according to a times online article consumers in Britain pay 79p, while customers in the eurozone pay 99 cents, which is the equivalent of 54.8p). This wednesday, however, Apple announced to equalise prices for downloads of songs from its iTunes online store in Europe within the next six months; a step welcomed by the European Commission. According to Apple’s CEO Steve Jobs

“this is an important step towards a pan-European marketplace for music, and we hope every major record label will take a pan-European view of pricing”

Seems like Apple and the COM are off joining forces in the fight for a stronger more consumer-friendly Single Market for Online Music in Europe, just recently declared in the Commissions Comunication on Creative Content Online.

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