Updates: NRAs and listed events

Posted on March 29, 2008 | Filed Under communication technologies

Just for reference: I have updated the synopsis on EU legal texts on National Regulatory Authorities in different industry sectors that I compiled (and posted) last October (you can download it here).

And I also updated the table on listed events under the Television Without Frontiers Directive (or, as of December next year, the Audiovisual Media Services Directive), that I first posted in July 2007. As the European Court of Justice has upheld the decision of the Court of First Instance in the Infront WM-Case (judgment of 13 March 2008, C-125/06 P) , it is now clear that the Commission has to take a formal decision on the notified listed events that can be appealed. Informationoverlord has more news on the UK-developments, where Channel 5 was added to the list of broadcasters which may acquire the rights to broadcast “listed events” (this does not change the list of events).

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“a notable report of valour”*: 13th “Progress Report”

Posted on March 19, 2008 | Filed Under communication technologies

It used to be called implementation report, monitoring how the EU Member States had implemented EU telecommunications directives. Today, Commissioner Reding presented the 13th edition of this yearly evaluation (technically a Communication from the Commission to the European Parliament and the Council), and it again carries a different title. Last year, it was called “European Electronic Communications Regulations and Markets”, this year it is the “Progress Report on the Single European Electronic Communications Market”. It is a very brief document, and it seems to be getting shorter every year (this year down to 14 pages, after 19 pages last year), while the annexed “staff working documents”, where the substance lies, are getting longer and longer (annex I, annex II).

As the drafts have been around for a while, there are no great surprises, and much of the communication is simply “same procedure as every year“, with the usual interchangeable conclusions such as:

“The implementation of the regulatory framework is working overall to bring competition to e-communications markets, with resulting benefits to consumers in terms of prices and innovative converged services.” (12th report)
“The sector continues to enjoy increased revenues from continued growth in turnover for fixed broadband and mobile services. At the same time, consumers have benefited from a strengthened competitive environment through lower prices. The EU regulatory model has shown itself capable of ensuring increasingly competitive markets while providing solid consumer protection and a guaranteed basic service.” (13th report)

But the staff working documents contain a wealth of information on the status of European communications markets and regulation, as well as some indication on where the Commission holds a critical view of developments, even if it has not yet initiated infringemnent procedures.

Of course Commissioner Reding has taken the opportunity of the presentation of this report to stress her policy aims, such as price regulation for SMS and data-roaming as well as (symmetric) lower mobile termination rates (in her presentation, she mistakenly refers to average mobile termination rates of € 0.97, which really would be rather expensive; it should be € 0.097). If you care for the press release and other ”easy to read”-stuff, go here.

* Shakespeare, Twelfth Night, Act III, Scene 4

PS: lest I forget - the ERG has made available its Common Position on symmetry of fixed call termination rates and symmetry of mobile call termination rates

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“A dream, a breath, a froth of f…ing joy.”*

Posted on March 18, 2008 | Filed Under digital content

Fleeting expletives, I would think, are just that: fleeting. Uttered in one second, gone in the next, and quickly forgotten. Not so on US television, when the moral crusaders at the FCC are watching (see the previous posts here and here). And now the remarkable case of the hedgehogFCC v. Fox finally arrived at the US Supreme Court for good, when the petition for certiorari was accepted (see here for all documents) - the case will be heard in autumn.

The prospect of the highest US judges arguing about cow shit in a Prada purse and remarks like “Fuck ‘em” (which - according to the FCC - is bad when said by Cher on daytime TV) or “Fuck yourself” (which is ok when said by Vice President Cheney in the US Senate) gets the blawgosphere excited (for instance: here, here, here and here). I will not add any more to that, since it is obviously not of particular importance for European communications law. Let’s just suffice it to point to the next case slowly building up: just a few weeks ago the FCC fined ABC network stations for a “shocking and titillating” scene in NYPD Blue, broadcast more than five years ago (apparently it was a rather severe shock). In case you want to be shocked too, see the video here at the Website of the Parents Television Council (”For Educational Purposes only”), and read the FCC order (the latter seems more shocking to me than the former).

There is just one angle of the Fox-case I would like to point to: the imponderabilities of product placement. I am sure the makers of Prada purses paid a nice sum to Fox to have their brand name mentioned on prime time network TV, even in a sentence scripted as “Have you ever tried to get cow manure out of a Prada purse?” What they most likely did not expect at that time was that the product placement would extend to a Supreme Court opinion. Generations of law students - certainly an interesting target market for Prada - will read a US Supreme Court opinion where the luxury handbag is prominently mentioned. Will the product placement agency be able to charge extra for this?

* “A dream, a breath, a froth of fleeting joy.” - Shakespeare, The Rape of Lucree, Stanza 31

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Update on ECJ and CFI-cases

Posted on March 11, 2008 | Filed Under communication technologies

The European Court of Justice gave judgment in the Case C-82/07 Comisión del Mercado de las Telecomunicaciones last week. It was not a spectacular case, and the jugdment brings no surprises: separate regulatory authorities for different functions of an NRA are ok under the Framework Directive 2002/21/EC, and it is also ok if a “ministerial authority” takes care of some of the regulatory functions. In this case, the “Member State must ensure that those authorities are neither directly nor indirectly involved in ‘operational functions’ [of undertakings providing electronic communications networks and/or services] within the meaning of the Framework Directive.”

Coming up next:

(For the full list of interesting electronic communications cases still pending see here)

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“the idle comments that it makes”*: comments letters in Article 7 procedures

Posted on March 11, 2008 | Filed Under communication technologies

Comments issued by the Commission in proceedings according to Article 7 (3) of the Framework Directive 2002/21/EC have no binding legal effects, and differ fundamentally from decisions the Commission might take under Article 7 (4) of directive 2002/21/EC.

That is - very briefly - the substance of two recent decisions of the Court of First Instance in the cases T-109/06 Vodafone v. Commission and T-295/06 Base NV v. Commission. 

It might be called the CP Scott-Doctrine of the Article 7-procedure: comment is free, but facts (here: decisions) are sacred. (The view of the ECJ in the case C-256/05 Telekom Austria, that even a decision based on Article 7 (4) might be no more than “just an answer” to a request by an NRA should rightly be considered to be no more than an obiter dictum.)

* Shakespeare, King John, Act V, Scene 7

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RFID - In time we hate that which we often fear*

Posted on March 10, 2008 | Filed Under communication technologies, fundamental rights

rfid.jpgThe European Commission has recently contributed to the public debate on the opportunities and challenges of Radio Frequency Identification (RFID) technology with a Draft Recommendation on the implementation of privacy, data protection and information security principles in applications supported by RFID.

Despite the general perception Radio Frequency Technology is nothing particularly new. Technologies related to RFID such as the long-range transponder systems of “identification, friend or foe” (IFF) for aircraft were already explored in the 1950s. The reason for todays hype around RFID (probably started by 2006 CEBIT) is the technology’s rapid movement from the reserach lab to mass application during the last years.

The industry cherishes great expectations as it has discovered the potential financial benefits of the use of RFID tags. It claimes that from today’s simple radio chips storing product codes (including item number, production details like date, manufacturer and so on) which are already used in logistics and could replace the barcode at retail, it is only a small step to tomorrow’s ‘Internet of Things’, creating many opportunities not for business and society as well.

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