RADIO SPECTRUM POLICY
(21585)
11117/00
COM(00) 407
|
Draft Decision of the European Parliament and of the Council on a
regulatory framework for radio spectrum policy in the European
Community.
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| Legal base:
| Article 95 EC; co-decision; qualified majority voting
|
| |
| Document originated:
| 12 July 2000 |
| Forwarded to the Council:
| 30 August 2000 |
| Deposited in Parliament:
| 27 September 2000 |
| Department: |
Trade and Industry |
| Basis of consideration:
| EM of 2 October 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested on progress
|
Background
18.1 This draft Decision is one of seven
proposals for legislation that will form the new regulatory framework
for electronic communications networks and services. They were
anticipated in the Commission Communication on the results of
the public consultation on the 1999 Communications Review which
the Committee considered on 24 May and 19 July[63]
and which was debated in European Standing Committee C on 16 February
2000[64].
18.2 The other six proposals are also considered
today. They are listed in the paragraph on the draft Directive
on a common regulatory framework for electronic communications
networks and services[65].
18.3 This Decision follows from, and gives
effect to, undertakings contained in the Commission's Communication
of November 1999 "The Next Steps in Radio Spectrum Policy
— Results of the Public Consultation on the Green Paper[66]".
The draft Decision
18.4 The purpose of this proposal is to
establish a policy and legal framework in the Community through
which harmonisation of the use of the radio spectrum, in areas
relevant to Community policy objectives, can be achieved. It seeks
to complement the spectrum management activities of the International
Telecommunication Union (ITU) and the Conference of European Postal
and Telecommunications Administrations (CEPT). The ITU is part
of the UN and is responsible for radio spectrum harmonisation
at global level, principally through its World Radio Conferences
(WRCs). The CEPT provides a framework for discussions on radio
spectrum matters in Europe and has 43 Member States. The Commission's
Explanatory Memorandum states that the aim of the proposal is
to establish a framework for effective spectrum harmonisation
in the Community, while recognising the experience and expertise
of the CEPT and ITU/WRC.
18.5 The Minister for Small Business and
E-Commerce at the Department of Trade and Industry (Ms Patricia
Hewitt) has summarised the most significant provisions of the
proposal as:
"(i) Creation of
Senior Official Spectrum Policy Group (SOSPG)
"Article 3 proposes the creation of the SOSPG.
This would comprise senior representatives from Member States
and the Commission and would meet at least twice a year under
the Chairmanship of the Council Presidency. Article 4 lists the
proposed functions of the Group. Essentially these are to monitor
and evaluate developments in the use of the radio spectrum and
advise the Commission on the need for spectrum harmonisation measures
at Community level. The SOSPG would be responsible for consulting
representatives of business and groups representing radio spectrum
users.
"(ii) Harmonisation of Radio Spectrum
"Articles 5 and 6 set out a new framework for
spectrum harmonisation under which the Commission would exercise
delegated powers on the basis of the Comitology Decision[67].
It is proposed that the Commission will chair a Radio Spectrum
Committee of representatives of Member States, in accordance with
the procedural requirements of the Comitology Decision. Taking
into account 'where possible' the advice of the SOSPG the Commission
may propose harmonisation measures relating to the use of radio
spectrum, assignment methods, conditions of use and provision
of information. These will take the form of a mandate to the CEPT,
which will be subject to the advisory procedure specified in the
Comitology Decision.
"On the basis of the work completed by CEPT,
the Commission will decide whether the results of the mandate
are acceptable and may decide to make the results mandatory for
Member States, through the regulatory procedure set out in the
Comitology Decision. If the Commission considers that the CEPT's
work on the basis of a mandate is unacceptable, it may adopt measures
to achieve the objectives of the mandate acting in accordance
with the regulatory procedure.
"(iii) Provision of Information on Spectrum
Allocation and Assignment
"Article 7 would require Member States to publish
information on frequency allocation[68]
and assignment[69] as
specified in the Annex. This information would include existing
allocations and assignment of radio spectrum, plans for changes
to existing allocations and for the introduction of new services
and procedures for granting authorisation to use spectrum, including
charges and licence fees. However, Article 10 specifies that Member
States shall not disclose information covered by the obligation
of professional secrecy.
"(iv) Relations with Third Countries and
International Organisations
"Article 8 provides that the Commission shall
monitor developments which have spectrum implications in third
countries and in international organisations and may propose measures
to 'secure the implementation of the principles and objectives
of this Decision where appropriate' and that, in international
organisations, where necessary, 'common positions shall be agreed
to ensure Community coordination among Member States'.
18.6 Commenting on the impact on UK law,
the Minister says:
"None of the proposals
in the Decision would require changes to UK law. However, the
proposal in Articles 5 and 6 for the Commission to exercise delegated
powers in the area of spectrum harmonisation could lead to the
adoption of specific spectrum harmonisation measures, either in
the form of directives or, more probably, decisions, to which
the UK would be legally required to give effect through the allocation
decisions taken by the Radiocommunications Agency of the DTI.
The requirement in Article 7 that Member States should publish
specified information on spectrum allocation and assignment could
also require changes to the way in which information is currently
published in the UK, for example through the Radiocommunications
Agency's UK Spectrum Strategy and its Radio Frequency Allocation
Tables."
The Government's view
18.7 In a detailed comment on the policy
implications of the proposal, the Minister sets out the Government's
concerns about the proposal in Article 6 of the draft Decision
that the Commission should exercise delegated powers to harmonise
radio spectrum allocation. She says that the Government does not
consider that the delegation of implementing powers is appropriate
in this case.
18.8 The Minister also says that the Government
would have concerns if the intention of Article 8.3 were
to seek agreement on detailed briefs in negotiations with third
countries. This could hamper the negotiating flexibility which
is essential in the context of a World Radiocommunications Conference
and could, on occasion, bind the UK to positions which would be
incompatible with the national interest.
18.9 The Minister's detailed comments are
as follows:
"The Government fully
supports the Commission's objective of securing effective provision
and efficient use of radio spectrum, but has concerns ... about
the proposal that the Commission should exercise delegated powers
to harmonise radio spectrum allocation.
"The Commission's Explanatory Memorandum states
that the purpose of its proposal is to complement, rather than
replace, the spectrum management activities of ITU/WRC and CEPT
and of the Member States. The Government agrees, as stated in
its response to the earlier Green Paper[70],
that selective Community intervention in the spectrum management
process can be valuable in supplementing, and providing an impetus
to the process of spectrum harmonisation through the CEPT (which
as a non-treaty-based organisation cannot adopt legally biding
measures) in pursuit of important Community policy objectives.
This approach has already been successfully followed through the
UMTS Decision[71] and
S/PCS Decision[72], under
which Member States were mandated to seek early agreement in CEPT
on the provision of harmonised spectrum for these services.
"The Government agrees that there is value in
setting up new arrangements to advise the Commission on strategic
spectrum management issues and to help identify those issues where
Community involvement in the spectrum management process will
add value rather than introducing unnecessary duplication. The
proposal to establish the Senior Official Radio Spectrum Policy
Group is welcome and the UK will expect to play an active part
in its work.
"The Government can also accept the proposal
that Member States should publish information on spectrum allocation
and assignment. There is value to Government, industry and users
in having this information on a comparable basis across the EU
as a whole. The UK already provides comprehensive information
about current and proposed spectrum use through its published
frequency allocation tables and UK Spectrum Strategy which the
Commission has said that it regards as a model. At present, the
Radiocommunications Agency (RA) does not publish information on
spectrum assignments to specific operators. However, the RA is
in discussion with the industry about ways in which this might
be done, though steps will need to be taken to ensure that confidential
information, for example the assignments provided to security
companies, is subject to suitable safeguards. The Government will
seek to ensure that the Decision takes account of the need for
special treatment for such assignments.
"Article 8, which concerns relations with third
countries and International Organisations, appears acceptable,
though some clarification of the Commission's intentions is needed.
The proposal in Article 8.3 that common positions should be agreed
to ensure Community co-ordination amongst Member States in International
Organisations is acceptable, provided that the intention is to
endorse broad Community objectives, prior to each World Radio
Conference, in line with current practice. The Government would
have concerns, however, if the intention were to seek agreement
on detailed negotiating briefs. This could hamper the negotiating
flexibility which is essential in the context of a WRC, and could
also, on occasion, bind the UK to positions which would be incompatible
with our national interest.
"The Government considers that the most problematic
aspect of the Decision is the proposed approach to spectrum harmonisation
measures in Article 6 under which the Commission would have delegated
power to take action to harmonise radio spectrum use, including
assignment methods and conditions of use.
"At present, in line with Council Resolution
318/01 of 1992, the CEPT is recognised by the Community as being
the appropriate body for achieving spectrum harmonisation in Europe.
CEPT has important strengths, in particular the fact that its
43 members embrace the whole of Europe. It is therefore a highly
suitable organisation for achieving European-wide spectrum harmonisation.
"On the other hand, the Government agrees that
CEPT has weaknesses. There is some force in the criticism of CEPT
which is sometimes advanced, that it is too technically-driven,
and insufficiently sensitive to wider political and strategic
issues. A process of internal reform is already underway in CEPT
to attempt to remedy this weakness. However, the Government agrees
that a high level strategic input to spectrum policy at European
level is needed and therefore supports, as stated above, the creation
of the SOSPG.
"CEPT is also limited in that, as a non-treaty-based
organisation, its recommendations and decisions cannot be legally
binding. As a result, industry cannot be certain that the measures
that it adopts will be implemented in all member countries, within
a reasonable timescale. The UK agrees that, where major strategic
EU wide issues are at stake, there may be value in action by the
EU to require Member States, within CEPT, to reach agreement on
the provision of harmonised spectrum within a specified timescale.
"To date, where this has been considered necessary,
it has been done through specific measures agreed through the
Council of Ministers and European Parliament. A recent, highly
successful, example, was the UMTS Decision of December 1998[73]
which committed Member States to agree on harmonised spectrum
for third generation mobile services. As part of that process,
CEPT was mandated to carry out various activities which it completed
well within the required timetable.
"The draft Decision proposes a significant change
to this approach. As at present, the Commission could continue
to give mandates to the CEPT. However, the Commission would then
be able to decide, subject to consulting a committee of representatives
of Member States, established under the Comitology Decision to
make the results mandatory for Member States. The Commission would
also be able to decide, where it considers the results of work
done on the basis of a mandate to be unsatisfactory, that it will
adopt measures to achieve the objective of the mandate, acting
in accordance with the regulatory procedure laid down in Article
5 of the Comitology Decision. This would permit the Commission
to adopt measures without recourse to the Council of Ministers
or European Parliament, provided that they were approved by the
Radio Spectrum Committee.
"The Government does not consider that the delegation
of implementing powers is appropriate in this case. In its view,
such powers are intended to be used only where the Commission
is operating delegated powers within an established policy framework
laid down by the Council of Ministers, in line with Article 202
of the Treaty establishing the European Community. In the Government's
view, Article 6 of the draft Decision does not comply with this
requirement as it simply confers on the Commission an open-ended
power to adopt measures 'where appropriate'.
"Moreover, even if the drafting of the Decision
were to be improved, the Government does not consider, in principle,
that spectrum harmonisation is an appropriate area for the exercise
of delegated powers. Any decision to harmonise spectrum allocation
for a particular service may involve the need to balance a number
of technical and economic, and in some cases cultural and social
considerations. Defence considerations may also be involved, since
around 40% of the spectrum in Europe is allocated to military
purposes. The UK therefore considers that any individual decision
on spectrum harmonisation should be a matter for the Council of
Ministers and European Parliament. The experience of the UMTS
and SPCS Decisions has shown that rapid agreement can be achieved
through existing mechanisms where this is required."
18.10 On consultation, the Minister
says:
"DTI, Oftel and the
Radiocommunications Agency have been liaising closely with industry
and consumer representatives throughout the 1999 Communications
Review. In addition the Radiocommunications Agency has consulted
users extensively on spectrum issues through the Spectrum Management
Advisory Group and its established consultation mechanisms, including
its industry consultative committees. This process will continue
over the coming months."
Regulatory Impact Assessment
18.11 The impact on business of such measures
could be positive or negative, the Minister says. Rapid and effective
frequency harmonisation can benefit business by facilitating the
development of a European-wide market, but inappropriate harmonisation
can impose additional costs by requiring businesses to change
their frequency usage unnecessarily or tying them to sub-optimal
technologies. An RIA will be prepared in due course, she says,
if the Decision is adopted and specific measures brought forward
under it.
18.12 According to the Minister, the creation
of the Senior Official Radio Spectrum Policy Group, which will
have a duty to consult users, should help to ensure that actions
undertaken by the Commission are based on a thorough analysis
of relevant market developments in Europe and could strengthen
the voice of users in the spectrum management process. Minister.
Timetable
18.13 The Minister says that the French
Presidency regards this proposal as of lower priority than other
items in the package. Discussion on it is, therefore, not likely
to begin until early in 2001.
Conclusion
18.14 We note the Government's significant
concerns with the proposal, but that it supports the Commission's
objective of securing effective provision and efficient use of
radio spectrum.
18.15 Since it appears unlikely that
discussion will begin until next year, we shall not clear the
document, but ask the Government to report progress.
63 (21189) 8330/00; see HC 23-xix (1999-2000), paragraph
7 (24 May 2000) and HC 23-xxv (1999-2000), paragraph 8 (19 July
2000). Back
64 Official
Report, European Standing
Committee C, 16 February 2000. Back
65 (21562)10962/00;
see paragraph 15 of this Report. Back
66 (20668)
12840/99; see HC 23-ii (1999-2000), paragraph 4 (1 December 1999)
and Official Report, European Standing Committee C, 16
February 2000. Back
67 Decision
1999/468/EC. Back
68 Attribution
of spectrum to specific services. Back
69 Attribution
of spectrum to specific users. Back
70 (20668)
12840/99; see HC 23-ix (1999-2000), paragraph 7 (16 February 2000). Back
71 128/1999/EC.
(19284) -; see HC 155-xxxv (1997-98), paragraph 9 (22 July 1998). Back
72 710/97/EC. Back
73 128/1999/EC. Back
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