Before the Council: the COREPER-documents for the telecoms review

Posted on November 27, 2008 | Filed Under communication technologies

Just for quick reference: links to the documents that ministers at the Council will discuss tomorrow and where they will try to reach a political agreement:

BERT (the “Superagency”, resembling more a muppet of Ernie and Bert fame) shoud be replaced, if ministers have their way, by GERT (obviously, a group seems to be better than a body, or maybe they just wanted to get rid of the muppet-agency tag).

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Suitable, effective, appropriate, not unduly lengthy - appeals mechanisms in the telecoms review

Posted on November 27, 2008 | Filed Under communication technologies

As I said in the previous post, change sometimes comes in very slight increments - and even though there are some major changes proposed in the current review of the regulatory framework for electronic communications networks and services, there are also some more “marginal” issues, which nevertheless provide interesting insights. Take for instance the appeals procedure against decisions of the national regulatory authorities:

Art 5a of the ONP-Framework-Directive 90/387/EEC (as amended by Directive 97%51/EC) merely said

“Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a body independent of the parties involved.” (emphasis added)

Art 4, paragraph 1, of the Framework Directive 2002/21/EC used more words and added a sense of urgency:

“Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. …” (emphasis added)

The Commission’s proposal for an amendment to the Framework Directive did not change this text (but added new requirements for interim measures), but the European Parliament wanted to impose a time limit for appeals. In its amended proposal, the Commission comes out against this proposal as it “would raise questions regarding Community competence in relation to national court procedures” (”raise questions” of course means that the Commission might consider it, but there seems to be no possibility that it would be accepted by the Council). Still, the Commission altered its proposal so that the last two sentences of the text quoted above now would read:

“This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account, that there is an effective appeal mechanism and that proceedings before the appeal body are not unduly lengthy.” (here the emphasis added marks the proposed changes)

In case this becomes law, I’d expect that in the next review we could see another step to provide for “speedy” appeals procedures. However, the Council does not seem eager to push the appeal bodies too much: in the proposed political agreement,  only the first amendment (adding “effectively”) is accepted, whereas the second amendment (”…unduly lengthy” did not make it into this compromise document).

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“sufficiently reasoned” is not enough: new Art 7-Recommendation

Posted on November 12, 2008 | Filed Under communication technologies

Sometimes, change comes in very slight increments (I am not referring to change in the US), and Community legal texts often are a case in point. Of course the electronic communications sector has seen a tremendous amount of legal change over the past 20 years, but there are also some aspects of telecoms regulation where changes are more subtle.

The new recommendation on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the directive on a common regulatory framework for electronic communications networks and services, published in today’s Official Journal, provides for a new “short form” for certain standard notifications that usually do not require close scrutiny. But interestingly, even amongst the many paragraphs of the recommendation that remained basically unchanged as compared to the old notification of 2003, there are two changes that are significant rather for the spirit than for the immediate practical consequences:

  • First, the draft measures notified to the Commission had to be “sufficiently reasoned”, according to the old recommendation; in the new version, the Commission wants them to be “duly reasoned”.
  • And second, according to old recommendation, regulators had to provide “elements to show” that they had notified the national regulatory authorities in all other Member States - nowadays, to “show elements” is not enough any more, and the regulators have to provide “evidence”.

As I said, nothing much will change because of that, but it seems the Commission has become a bit more sceptical as to the information it receives from the regulators.

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“an eminent body that enforced the law”*: the Commission’s amended proposals for the telecoms-package

Posted on November 12, 2008 | Filed Under communication technologies

I have not come around yet to examine in detail the amended proposals for the telecoms-package that were tabled by the Commission last week, and so I’ll just post the links to the texts and the procedure files of the European Parliament. We’ll see what the Council will make of this when it meets on 27 November 2008. Just one note: the Commission accepts that the “Superagency” (that never was meant to really be a superagency) will be just a mere “Body of European Telecoms Regulators” (BERT). The real superagency of course remains the Commission - and Commissioner Reding has finally made a more candid statement, expressly calling herself a regulator, in a speech given a month ago in Brussels:

“My approach as a regulator has been to attack all those areas where bottlenecks hold back competition and the development of the Single Market.” (emphasis added)

So maybe “BERT” will, after all, not really be “an eminent body that enforced the law”. Anyway, here are the links:

*) Shakespeare, Measure for Measure, Act 4, Scene 4

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“one person working the bleeping machine”: FCC v. Fox transcript

Posted on November 5, 2008 | Filed Under digital content

Just as a quick update to yesterday’s post on FCC v. Fox beofre the US Supreme Court: here [edit 7 Nov 2008: link corrected] is the transcript - and it is not particularly compelling reading - even if there are nine instances of “Laughter” noted in these 61 pages, such as when Justice Scalia states “I mean, bawdy jokes are okay if they are really good.” - or when Solicitor General Garre explains why the expletives in the awards ceremony where not bleeped out by Fox: “at that time they only had one person working the bleeping machine or whatever it is they call it.”

The f- and s-words were not spelled out during oral argument, but the index notes 16 uses of “f-word” and 6 uses of “s-word”. However, there was an interesting question by Justice Stevens, when he asked Solicitor General Garre towards the end of the hearing: “Do you think the use of the word dung, D-U-N-G, would be indecent?”

Answer by Solicitor General Garre: “I think it would probably qualify under the subject matter definition, but it probably wouldn’t be patently offensive under community standards for broadcasting.” There was no “Laughter” recorded for this answer.

I don’t assume Justice Stevens had read our blog, where we pointed out Shakespeare’s avoidance of the word “cow shit” by using “cow dung” in King Lear, but obviously the issue whether or not Shakespeare can be shown on daytime TV might depend on the FCC’s interpretation of indecent - and never mind the violence which seems to be no problem as long as no one says the f-word. In fact there is one telling dialogue in the transcript, when Chief Justice Roberts obviously does not even consider that graphic violence could be a problem for kids, or rather that the f-word might even be acceptable only when it is used in connection to violent acts:

CHIEF JUSTICE ROBERTS: … The context makes all the difference in the world. … I mean, it’s one thing to use the word in, say, Saving Private Ryan, when your arm gets blown off. It’s another thing to do it when you are standing up at an awards ceremony.
MR. PHILLIPS [counsel for Fox]: You can’t seriously believe that the average nine-year-old, first of all, who is probably more horrified by the arm being blown off to begin with, but putting that aside, you — it cannot possibly be that the child has more of a reaction to that word in that context than if a young high school football player is running down the field screaming a particular expletive.

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“Fruity language” on TV, Radio, and before the Supreme Court?

Posted on November 4, 2008 | Filed Under digital content

cowThe day of the presidential election in the US is the day when an obviously very serious issue will be argued before the US Supreme Court: is it ok to say cow shit (instead of “cow manure”, as scripted) and “fuckin’ simple” (instead of “freakin’ simple”) on daytime TV? The case FCC v. Fox has generated a lot of interest (also in this blog: read here, here and here), and if you want to catch up on this case before the transcripts of the hearing become available, the SCOTUS Wiki is a good place to start, with links to all the relevant documents. Scotus Blog and First Amendment Center also provide a concise preview or analysis. An interesting question of course will be whether or not actual use of the f- and s-words will be made in the oral arguments (read more on Scotus Blog on that). As it is, the audio tapes are not going to be released until the current Term is over, so even if the Justices use the f- and s-words, you won’t hear them doing so for the moment.

And while the US court will have to decide on the f-word if used merely as an expletive, the BBC currently has some problems with the f-word used in its core meaning. I will not comment on that, other than just say I agree with a Guardian podcast where someone (I missed the name) said: “This isn’t the worst program that’s ever been transmitted. It was ugly, it was revolting, and it was infantile, but it was not the end of the world.” And of course one cannot help but note that all those disgusted by the broadcast in question dutifully link to it and provide still more coverage (as informationoverlord points out). The one thing I learned from the BBC-“Sachsgate” or “Manuelgate” is that instead of writing “f-word” or actually spelling out the f-word, one can also use another “f-word”: fruity. If you say “fruity language” (as the Guardian does here), everyone knows what it stands for, and still you haven’t said it. If you don’t mention the elephant, it’s not in the room.

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