From public service broadcasting to public service media

Posted on July 22, 2008 | Filed Under digital content, public services

Only some time after Sarkozy confirmed his plans on the future of public broadcasters in France by announcing the end of advertising in public service television (he wants to replace it with a tax, which should be levied on telecoms firms and commercial broadcasters), I followed an invitation of the French Presidency to Strasbourg joining a conference on “public service broadcasting in the digital age” last week. Even if the speeches and discussions didn’t lead to revolutionary ideas concerning the public service broadcasters’ role in a more and more digital future, the two days program gave a good summary of the current positions various keyplayers have on the topic, which I’d like to share with you.

The discussion revolved around two major issues, the first being the role of public service media today and in the future. The traditional function of public service boradcasters mirrored in their public service remit was mentioned by almost all speakers, who overwhelmingly agreed on the main purposes of such services being:
- to form public opinion
- to foster media pluralism
- to provide high quality programs
- to correspond to democratic, social and cultural needs of society

Even if these public purposes are still the same today, the change in the media landscape on the other hand has been a dramatic one. According to one of the contributions in the plenary discussion already 30% of teenagers in Denmark turn on their TV only once a week and instead make extensive use of new media services, consuming audiovisual media through other platforms than TV, be it the internet or the mobile network.
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“This little one shall make it holiday”*: ECJ decides one more telecoms-case before court vacation

Posted on July 17, 2008 | Filed Under communication technologies

Today the European Court of Justice delivered judgement in the joined cases C‑152/07 to C‑154/07 Arcor et al. v. Germany (see here for my post on the advocate general’s opinion). It really is “a little one”, quickly decided before the court goes into vacation, resolving an issue from the early days of liberalisation that should have been completely clear from the start. But then, it was as late as 2003 that the German regulator decided to give Deutsche Telekom what was in effect a surcharge on interconnection fees that carriers without an access network of their own had to pay. It was only collected for a couple of months, but the alternative operators fought it in the courts, and the German Federal Administrative Court made a request for a preliminary ruling to the ECJ.

It is a brief judgment (45 paragraphs), as the questions were not particularly difficult to answer. The ECJ also makes liberal use of “it is clear” (for instance in No. 20, 21, 24, 30, 31, 38, 40, 41) and “moreover” (in No 25, 26, 30), which also indicates that it was not a very complex issue. The ECJ also prominently points out what the whole case was about:

“It is not disputed that the effect of the connection charge at issue in the main proceedings is only to protect the market-dominant subscriber network operator”

As the directives that were relevant in this case (90/388/EEC, 96/19/EC, 97/33/EC and 98/61/EC) are not in force any more, the legal niceties are for the historians - maybe with the exception of the issue of “direct effect” of directives. Here the ECJ pointed out that the actions before the referring court had been brought by private persons against the Member State, and Deutsche Telekom was a third party which suffered “mere adverse repercussions”. The “removal of benefits” cannot be regarded as an obligation falling on a third party, and so it did not stand in the way of accepting direct effect of the directives. This might also be relevant when thinking about a possible direct effect of the present directives. Other than that, the relevance of the case probably rests only on its potential to serve as a showcase for a particular strand of (not only) German regulatory policy. The more recent exhibit of this policy - “regulatory holidays” - is also pending at the ECJ. But first, there will be court holidays.

Go here for the list of pending (and recently decided) telecom and broadcasting cases.
*) Shakespeare, King Henry VIII, Act V, Scene5

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Another case for Cave? Commission tender for study on digital dividend

Posted on July 13, 2008 | Filed Under spectrum policy

transmitterFor the Commission, the case is clear: “The digital dividend … opens up sufficient spectrum for broadcasters to significantly develop and expand their services while at the same time ensuring that other important social and economic uses, such as broadband applications to overcome the ‘digital divide’, have access to this valuable resource.” The only thing missing seems to be a clear scenario how the Commission can convince the member states that an optimal use of the digital dividend can only be achieved by letting the Commission coordinate a European approach - and that this approach means making spectrum available “to the most valuable uses without pre-conditions” (and for “most valuable uses” read: uses that make the most money using the spectrum).

So in order to prepare for a legislative proposal on a coordinated approach to the digital dividend, the commission has put up a tender “Exploiting the Digital Dividend”. According to the tender specifications (from which the quotes above are taken), the study will

  • draw up an inventory of national situations affecting the digital dividend
  • perform a socio-economic analysis to determine the potential social, cultural and economic impact of the main possible uses of the digital dividend
  • provide investigation and “modelisation” of key exogenous constraints
  • development and validate options & scenarios for the EU coordinated approach
  • and finally make a recommendation and propose a “roadmap”

The Study will also provide the major input for the impact assessment that will accompany the Commission’s proposal. As the work on the study will take a full year, and the contract could be concluded in September at the earliest, it will not be before the end of 2010 that a Commission proposal on the digital dividend is to be expected. And for the study, it does sound like another case for Martin Cave - I’d be surprised if, in one way or another, Professor Cave would not be involved.

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“This weighty business will not brook delay”*: Commission alarmed at 116-numbers delay

Posted on July 13, 2008 | Filed Under communication technologies

Poor Commissioner Reding: not only did the industry committee of the European Parliament not follow the Commission’s wisdom on the need for a centralised “regulator” (rather: advisor) and instead asked for something almost equally complicated (we will follow this up over the coming weeks), the EU Member States also did not act as quickly as Reding wanted them to act on the so-called harmonised numbers for harmonised services of social value. So after already having asked EU-citizens to call numbers that don’t exist, Reding now bemoans delays in introducing the 116-services. Member States are asked to speed up implementation - while at the same time the Commission has to concede that there is not much left to implement: there is no obligation to provide the actual services, and the numbers are available - if anyone were interested - in all but three member states.

*) Shakespeare, King Henry VI, Part 2, Act I Scene 1

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BERT vs. EECMA - EP Committees vote against the “superagency”

Posted on July 9, 2008 | Filed Under communication technologies, national regulatory authorities

On monday evening, the Industry, Research and Energy Committee (ITRE) and the Internal Market and Consumer Protection Committee (IMCO) of the European Parliament voted on the European Commission’s Telecom reform proposal (see the press release here).

While the EP agreed to various proposals brought forward by the Commission, e.g. to give national regulators the power to require from dominant operators the functional separation of their access network infrastructure and service arms, it did not, however, endorse the Commission’s plans to establish a European Telecom Market Authority but sticks with rapporteur Pilar del Castillo Vera’s idea to transform the current ERG into a so called Body of European Regulators in Telecom (BERT) instead.

Not suprisingly Viviane Reding remains rather sceptical on this:

I welcome the good intentions behind the idea of creating a new Body of European Regulators for Telecommunications (BERT). However, businesses and consumers in Europe are interested in results, not in lengthy procedures. I have doubts whether BERT and the heavy Article 7-procedure now created will be able to deliver coherent regulatory responses to the regulatory obstacles still far too present in Europe’s single telecoms market. Questions remain especially as regards the financing of the new Body as well as its capability to arrive swiftly and efficiently at common positions.

However, the real set back for the Commission of course is the fact that instead of establishing a new european agency it couldn’t even obtain the full veto power on remedies, which might have been a good bargain and the whole idea behind the proposed EECMA after all (see Hans Peters post and comment here). According to ITRE and IMCO BERT now will be the one to have the last word.
The final vote on the proposal will be given by the European Parliament’s plenary on the 3 of September 2008.

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Hearing C-301/06 Ireland v Council - annulment of data retention directive?

Posted on July 2, 2008 | Filed Under fundamental rights

Yesterday the European Court of Justice held the hearing in a case brought forward by the Republic of Ireland (C-301/06) concerning the annulment of the highly controversial data-retention directive (2006/24/EC). Ireland’s claim is not based on concerns about data protection - co-applicant Slovakia, however, also argued that the directive was a violation of Article 8 ECHR* - but questions the choice of Article 95 as the directive’s legal basis. Since

the sole or, alternatively, the main or predominant purpose of the Directive is to facilitate the investigation, detection and prosecution of serious crime, including terrorism

and not the approximation of national laws for the benefit of the internal market, in the applicants’ view the only permissible legal base for the measures contained in the directive is Title VI of the Treaty on European Union, in particular Articles 30, 31(1)(c) and 34(2)(b).
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“Upon this warrant shall you have access”*: ECJ strengthens transparency

Posted on July 1, 2008 | Filed Under communication technologies

“Transparency” is something everyone seems to like - as long as it does not touch his/her own sphere (see, for instance, the previous post concerning DG DisInformation Society). Today, the European Court of Justice issued a landmark judgment concerning access to documents under Regulation (EC) No 1049/2001, overturning the Court of First Instance, in the Case C-39/05 and C-52/05 Sweden and Turco v Council and Others.

In its judgment, the Court opens up access to documents that have been closely guarded up to now: the opinions of the Council’s legal service. Such opinions serve to give “internal legal advice”, and they are usually called in when there is some uncertainty, especially on the “powers of the Community”. Of course, when the Council then agrees on a particular measure, it is not very interested in giving access to legal opinions that might have raised doubts as to whether that particular measure was within the competence of the Community (or the Council in particular). So the policy was clear and without exception: no access to opinions of the legal service. This was also policy of the Commission as regards access to opinions of its own legal service (and the Commission, consequently, intervened in the present case on the side of the Council).

In the particular case, the General Secretariat of the Council had refused access to an opinion concerning a proposal for a Council Directive laying down minimum standards for the reception of applicants for asylum (in the meantime, it is not a proposal anymore: Directive 2003/9/EC). The General Secretariat considered the opinion “an important instrument which enables the Council to be sure of the compatibility of its acts with Community law and to move forward the discussion of the legal aspects at issue.” Also, it thought that “disclosure of the legal service’s opinions could create uncertainty regarding the legality of legislative acts adopted further to those opinions and, therefore, jeopardise the legal certainty and stability of the Community legal order.” (It does sound awkward: if the opinion enables the Council to be sure, why should it create uncertainty?) 

The Council relied on Article 4 (2) of Regulation (EC) No 1049/2001, whereas the “institutions shall refuse access to a document where disclosure would undermine the protection of …  court proceedings and legal advice, … unless there is an overriding public interest in disclosure”.

While the Court of First Instance accepted that position, the ECJ turned it around - and did not accept that the independence of the Council’s legal service would be in jeopardy in case its opinions are disclosed; even if there were such a risk,

“an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act”

This does not, however, give automatic access to each and every opinion, but refusal should be the exception, not the rule: 

“That finding does not preclude a refusal, on account of the protection of legal advice, to disclose a specific legal opinion, given in the context of a legislative process, but being of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal.” [emphasis added]

In the concluding paragraphs of the judgment, the ECJ stresses again that the principles underlying Regulation (EC) No 1049/2001, can be regarded as an ‘overriding public interest’ (No 78). In other words: transparency, in itself, is in the public interest.

*) Shakespeare, The Two Gentlemen of Verona, Act III, Scene 2

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