4 Radio Spectrum Policy and European
Broadband
| (a)
(31965)
13872/10
+ ADDs 1-2
COM(10) 471
(b)
(31969)
13874/10
COM(10) 472
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Proposed Council Decision establishing the first Radio Spectrum Policy Programme
Commission Communication: European Broadband: investing in digitally driven growth
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| Legal base | Article 114 TFEU; QMV; ordinary legislative procedure
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| Department | Business, Innovation and Skills
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| Basis of consideration | Minister's letter of 19 November 2010
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| Previous Committee Report | HC 428-v (2010-11), chapters 4 and 5 (27 October 2010); also see (31638) 9981/10: HC 428-i (2010-11), chapter 28 (8 September 2010) and (31645) 10245/10: HC 428-i (2010-11), chapter 29 (8 September 2010)
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| To be discussed in Council | 2 December 2010 Telecoms Council
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| Committee's assessment | Politically important
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| Committee's decision | (a) Not cleared; further information requested
(b) Cleared
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Background
4.1 The EU regulatory framework agreed in 2002 consisted of the:
— Framework
Directive setting out
the main principles, objectives and procedures for an EU regulatory
policy regarding the provision of electronic communications services
and networks;
— Access and Interconnection Directive
stipulating procedures and principles for imposing pro-competitive
obligations regarding access to and interconnection of networks
on operators with significant market power;
— Authorisation Directive introducing
a system of general authorisation, instead of individual or class
licences, to facilitate entry in the market and reduce administrative
burdens on operators;
— Universal Service Directive requiring
a minimum level of availability and affordability of basic electronic
communications services and guaranteeing a set of basic rights
for users and consumers of electronic communications services;
— Privacy and Electronic Communications
Directive setting out rules for the protection of privacy
and of personal data processed in relation to communications over
public communication networks.
4.2 In addition, the Radio Spectrum Decision
established principles and procedures for the development and
implementation of an internal and external EU radio spectrum policy.
4.3 The Framework also established a number of committees
and policy groups to manage and implement the new system:
— Communications
Committee: which advises
on implementation issues;
— European Regulators Group: to
facilitate consistent application of the regime;
— Radio Spectrum Policy Group: to
enable Member States, the Commission and stakeholders to coordinate
the use of radio spectrum;
— Radio Spectrum Committee: to deal
with technical issues around harmonisation of radio frequency
allocation across Europe.
4.4 In this fast-developing sector, it was decided
in 2007 that the regulatory framework needed to be revised, with
a view to ensuring that it continued to serve the best interests
of consumers and industry in today's marketplace. An agreement
on the EU Telecoms Reform was reached by the European Parliament
and Council of Ministers on 4 November 2009, after two years of
discussion during the legislative process. It consists of:
—
the "Better Regulation" Directive;[7]
— the "Citizens' Rights" Directive;[8]
and
— the Regulation establishing the BEREC
and the Office.[9]
4.5 BEREC (Body of European Regulators of Electronic
Communications) replaced the European Regulators Group.[10]
4.6 The new rules now need to be transposed into
national laws of the 27 Member States by May 2011. The main elements
of the reform package are at Annex 1 of chapter 4 of our previous
Report.
4.7 On 8 September we considered the Commission's
over-arching Communication, "A Digital Agenda for Europe",
which focuses on seven priority areas, and foresees some 100 follow-up
actions, of which 31 would be legislative. The seven areas are:
— creating
a digital Single Market;
— greater interoperability;
— boosting internet trust and security;
— much faster internet access;
— more investment in research and development;
— enhancing digital literacy skills and
inclusion; and
— applying information and communications
technologies to address challenges facing society like climate
change and the ageing population.
4.8 In his analysis of that Communication, the Minister
for Culture, Communications and Creative Industries Department
for Business, Innovation and Skills/Department for Culture, Media
and Sport (Ed Vaizey) said that the Commission had itself noted
"the ambitious UK Government involvement in the telecoms
area through provisions of what has since become the Digital Economy
Act (2010) with far-reaching proposals concerning modernisation
of spectrum, a commitment to ensure universal broadband availability
and promotion of next generation networks (NGN)."[11]
He also noted that almost all National Regulatory Authorities
(NRAs = Ofcom in the UK) had imposed regulatory measures following
their analyses of broadband markets covering wholesale (physical)
network infrastructure access at a fixed location (market 4/2007);[12]
and wholesale broadband access (market 5/2007). He further noted
that.
"On spectrum management, the Commission notes
the need for coordinated action to open up the digital dividend
spectrum to different services across Europe, creating an opportunity
particularly for wireless broadband network operators to gain
valuable radio spectrum."
The Council Decision
4.9 This Council Decision is part of the Commission's
"Broadband Package"; the other constituent parts being:
— the
Commission Communication "European Broadband: investing in
digitally driven growth"; and
— a Commission Recommendation on Regulated
Access to Next Generation Access (NGA) Networks, in common parlance
the NGA Recommendation;
4.10 The package is the Commission's strategy for
encouraging the roll-out of broadband and fast- and ultra-fast
networks in the EU, using the radio spectrum that will be liberated
by the switch from analogue to digital. It sets out a framework
for helping Member States meet the broadband targets in the over-arching
European Digital Agenda, which is itself a key component of the
EU2020 Strategy. Those broadband targets are:
— by
2013, basic broadband coverage for all EU citizens;
— by 2020, fast broadband coverage at 30
Megabits per second for all EU citizens, with at least half European
households subscribing to broadband access at 100 Megabits per
second; and
— by 2020, doubling EU Member States' total
annual public spending on ICT Research and Development to €11
billion).
4.11 With respect to the Council Decision, the Commission
recalls that Article 8a(3) of Framework Directive 2002/21/EC as
amended by Directive 2009/140/EC invites the Commission to present
a legislative proposal to the European Parliament and Council
to establish a multiannual Radio Spectrum Policy Programme (RSPP)
setting out policy orientations and objectives for the strategic
planning and harmonisation of the use of spectrum, "taking
utmost account of the opinion of the Radio Spectrum Policy Group
(RSPG)."
4.12 The RSPP is based on Article 114 TFEU, "given
the importance of the availability and efficient use of spectrum
for the establishment of an internal market for electronic communications
and for other EU policy areas." The RSPP will determine until
2015 how spectrum use can contribute to EU objectives and optimise
social, economic and environmental benefits. It builds on EU regulatory
principles for electronic communications and on the Radio Spectrum
Decision No 676/2002/EC, reaffirms principles to be applied to
all types of spectrum use, establishes objectives for EU initiatives
and lists actions to be launched.
4.13 Our previous Report rehearses the background
in detail, so as to illustrate the context in which the proposal
is rooted. It was explained well and commented on fully in a very
helpful Explanatory Memorandum from the Minister for Culture,
Communications and Creative Industries (Ed Vaizey). He welcomed
the recognition that the Commission gave to the importance of
spectrum for economic growth in Europe and the need for a market-based
approach to its allocation, and also the reaffirmation of the
guiding principles of service- and technology-neutrality in the
Radio Spectrum Policy Programme proposal. He generally endorsed
the policy objectives, but has some concerns over certain aspects
of the proposal. He noted the various consultations that the Commission
had carried out leading up to the publication of this proposal,
confirmed that the UK (including Ofcom) had taken a full role
during the consultation period and said that he intended this
to continue during the negotiations that would now begin in the
Council and then with the European Parliament.
Our assessment
4.14 It is in the nature of the process that, at
this stage, the Government (and, no doubt, other Member States)
would not be fully content with the draft proposal. The Minister
having illustrated those aspects of the proposals about which
he had concerns, and which he said he would be addressing during
the upcoming negotiations, we reminded him of the need to keep
the Committee informed appropriately and in a timely fashion about
any proposed revisions; and, in the first instance, asked to be
told what Conclusions were adopted at the 2 December Telecoms
Council, and his views on the extent to which they advanced, or
if appropriate undermined, UK interests.
4.15 In the meantime, we retained the Council Decision
under scrutiny.
The Commission Communication
4.16 The Minister fully supported the Commission's
analysis that broadband will play a key role in economic recovery
and was supportive of the overall objectives of the Communication.
He described the Government's objective as to have the best superfast
broadband network in Europe by 2015 and said that, to achieve
this, the Government was encouraging and supporting investment
in rural and difficult to reach areas at the same time as market
players were investing in more densely populated areas. The Government's
policy was, he said, broadly consistent with the EU's targets
and likely to meet them ahead of most other Member States. With
regard to calls on Member States to set out national broadband
plans, the Minister said that the Government had articulated a
vision and would set out in a strategy document before the end
of 2010 the interventions planned to achieve it, and that this
should take the UK a long way towards achieving the specific EU
targets. The Minister also supported the recommendation that Member
States should take actions that promoted investment in broadband
networks and reduce investment costs, which he said was consistent
with the approach that the Government had been pursuing. The Minister
also welcomed the commitments the Commission had made in the Communication
in respect of European funding, noting that, in developing its
approach, the Government wished to make use of all available sources
of funding to support private sector investment in broadband networks.
However, noting that the proposed financing instruments to complement
existing resources for financing of broadband infrastructure would
require dedicated resources and that the Commission had said that
these dedicated resources could be provided by an EU contribution,
the Minister said that:
"It is the UK Government's position that any
proposals for additional funding from the EU Budget should respect
the current Financial Framework ceilings and offer good value
for money, particularly in the current economic climate. The Government
cannot support proposals calling for funding post-2013 as this
could prejudice the 2014-2020 Financial Perspective negotiations.
These decisions should not be made in isolation of wider EU issues."
4.17 The Minister concluded by noting that the Communication
would be the subject of Council Conclusions at the December Telecoms
Council.
Our assessment
4.18 Though it raised no legal or political issues,
we reported this to the House because of importance of its subject
matter. In addition, we also endorsed what the Minister had to
say about the financial aspects, and asked him to write before
the Telecoms Council meeting with as much information as possible
about the Conclusions that he expected to be adopted, and to say
in particular if he was confident that they would include the
necessary caveats that he had set out.
The Minister's letter of 19 November 2010
4.19 In his letter of 19 November 2010, the Minister
responds on both issues as follows:
THE RADIO SPECTRUM POLICY PROGRAMME (RSPP)
"In my view the draft Council Conclusions are
a set of high-level statements that set out a roadmap for the
roll-out of broadband for Member States (with the RSPP playing
a role in this activity).
"You may wish to note that the draft Conclusions
only specifically mention the RSPP in two instances and, in the
main, they currently advocate policies that more or less align
with those that HMG is undertaking to ensure the efficient use
of spectrum in order to ensure the timely roll-out of mobile broadband.
I am of the view that it is worth noting that both the roles of
innovation and competition are recognised within the Conclusions.
"As such, I conclude that the current draft
text places no restrictions that would have a negative impact
on the UK's future negotiations in this area and, indeed, bolster
the UK's negotiating stance within the EU.
"You may wish to note that it is now anticipated
that the bulk of the negotiations will now take place under the
auspices of the Hungarian and Polish Presidencies and my officials
will keep you informed on a regular basis as the negotiations
progress."
4.20 With regard to our queries about the content
of the Council Conclusions on this Communication, and specifically
about whether the Conclusions contain caveats that preclude or
pre-empt discussions covering the EU budget post-2012, the Minister
says:
THE BROADBAND STRATEGY AND COUNCIL CONCLUSIONS
"I am pleased to report that the current draft
does not precipitate these outcomes and thus the UK's position
on future EU budget negotiations is not compromised.
"That said, I am of the firm view that EU funding
can play a pivotal role in assisting the roll-out of broadband
in the UK. An excellent example of this is the broadband project
in Cornwall that attracted EU funding. I am pleased that the draft
Conclusions note actions that should increase the up-take of EU
funding within the UK.
"I hope that my response has fully answered
those issues that you raise and I look forward to working with
you closely to ensure that HMG's policy positions continue to
reap benefits for the UK."
4.21 The Minister concludes by saying that he does
not anticipate any major changes to the draft Conclusions, which
will then be put to Ministers at the Telecoms Council on 3rd
December that he will attending, and on this basis requests that
scrutiny be lifted on the Broadband Strategy, thus permitting
his agreement to them at the Council.
Conclusion
4.22 We are grateful to the Minister for his open
approach.
4.23 With regard to the draft RSSP Council Decision,
we look forward to further timely updates from the Minister at
appropriate moments, as the negotiations progress in the relevant
Council Working Party, and certainly before any political agreement
in the Council. In the meantime, we shall continue to retain it
under scrutiny.
4.24 We now clear the Commission Communication.
7 Directive 2009/140/EC of the European Parliament
and of the Council of 25 November 2009 amending Directives 2002/21/EC
on a common regulatory framework for electronic communications
networks and services, 2002/19/EC on access to, and interconnection
of, electronic communications networks and associated facilities,
and 2002/20/EC on the authorisation of electronic communications
networks and services. See OJ No. L337, 18.12.09, p.37. Back
8
Directive 2009/136/EC of the European Parliament and of the Council
of 25 November 2009 amending Directive 2002/22/EC on universal
service and users' rights relating to electronic communications
networks and services, Directive 2002/58/EC concerning the processing
of personal data and the protection of privacy in the electronic
communications sector and Regulation (EC) No 2006/2004 on cooperation
between national authorities responsible for the enforcement of
consumer protection laws. See OJ No. L337, 18.12.09, p.11. Back
9
Regulation (EC) No 1211/2009 of the European Parliament and of
the Council of 25 November 2009 establishing the Body of European
Regulators for Electronic Communications (BEREC) and the Office.
See OJ No. L337, 18.12.09, p.1. Back
10
The European Regulators Group for electronic communications networks
and services was set up by the Commission to provide a suitable
mechanism for encouraging cooperation and coordination between
national regulatory authorities and the Commission, in order to
promote the development of the internal market for electronic
communications networks and services. Building on this experience,
the Body of European Regulators for Electronic Communications
(BEREC) and its support Office were created within the recently
approved reform of the EU Telecom rules to improve the consistency
of implementation of the EU regulatory framework. The first meetings
of the Board of Regulators of BEREC and the Management Committee
of the Office were held in Brussels on 28 January 2010. In July
2010, Member States decided that its permanent seat will be in
Riga. See http://berec.europa.eu/Default.htm for further information
on BEREC. See http://berec.europa.eu/ for full information on
BEREC. Back
11
The general idea behind Next Generation Networks (NGN) is that
one network transports all information and services (voice, data,
and media such as video) by encapsulating these into packets,
as on the Internet. The International Telecommunications Union
thus defines NGN) as "a packet-based network able to provide
Telecommunication Services to users and able to make use of multiple
broadband, QoS-enabled transport technologies and in which service-related
functions are independent of the underlying transport-related
technologies. It enables unfettered access for users to networks
and to competing service providers and services of their choice.
It supports generalised mobility which will allow consistent and
ubiquitous provision of services to users." See http://www.itu.int/en/pages/default.aspx
for further information. Back
12
Markets defined by 2007/879/EC, Commission Recommendation of 17th
December 2007, on relevant product and service markets within
the electronic communications sector susceptible to ex ante regulation
in accordance with 2002/21/EC of the European Parliament and of
the Council on a common regulatory framework for electronic communications
networks and services - the "Framework Directive" (FWD). Back
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