4 Radio Spectrum Policy
(31965)
13872/10
+ ADDs 1-2
COM(10) 471
| Proposed Council Decision establishing the first Radio Spectrum Policy Programme
|
Legal base | Article 114 TFEU; QMV; ordinary legislative procedure
|
Document originated | 20 September 2010
|
Document deposited | 27 September 2010
|
Department | Business, Innovation and Skills
|
Basis of consideration | EM of 14 October 2010
|
Previous Committee Report | None; but 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)
|
To be discussed in Council | 2 December 2010 Telecoms Council
|
Committee's assessment | Politically important
|
Committee's decision | Not cleared; further information requested
|
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;[28]
the
"Citizens' Rights Directive;[29]
and
the Regulation establishing the BEREC
and the Office.[30]
4.5 BEREC (Body of European Regulators of Electronic
Communications) replaced the European Regulators Group.[31]
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 this chapter of our Report.
The Commission Communication
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 this 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)."[32]
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);[33]
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 proposal for a Council Decision establishing
the first Radio Spectrum Policy Programme (RSPP) is part of the
Commission's "Broadband Package" for the roll-out of
broadband and fast- and ultra-fast networks in the EU. The other
constituent parts, which we consider elsewhere in this Report,
are:
- a Commission Communication:
European Broadband: investing in digitally driven growth; and
- a Commission Recommendation on Regulated Access
to Next Generation Access (NGA) Networks.[34]
4.10 The Commission begins by recalling 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)."
4.11 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 (the RSD), reaffirms principles to be
applied to all types of spectrum use, establishes objectives for
EU initiatives and lists actions to be launched.
4.12 The Commission notes that spectrum is "essential
for the digital society, fast wireless services, economic recovery,
growth, high-quality jobs and long-term EU competitiveness",
and that spectrum policy initiatives "are also key to the
Digital Agenda for Europe and to the Europe 2020 strategy for
smart, sustainable and inclusive growth."
4.13 The Commission also notes that inputs for the
RSPP came from the Spectrum Summit hosted by Parliament and the
Commission, a Commission public consultation and the RSPG.
4.14 The proposal is accompanied by a 77-page impact
assessment and an eight page impact assessment summary. In brief,
the Commission says that the advantage of EU action lies in the
fact that radio transmissions do not stop at borders and incoherence
between national approaches can hamper spectrum usage. It argues
that insufficient coordination may have other negative effects,
e.g.:
fragment
the internal market, preventing economies of scale, thereby increasing
costs;
cross-border interference preventing
most efficient spectrum use by all Member States;
less effective international spectrum
coordination outside EU as there is no 'common voice';
missed opportunities for boosting innovation
at European level and possible delay in strategic investments.
4.15 The Commission says that the first RSPP will
outline how spectrum use can contribute to main EU political objectives
until 2015 and will generally envisage how to enhance social,
economic and environmental benefits of spectrum access. The following
objectives are identified:
support,
through spectrum policy, the wireless broadband objectives set
in the EU2020 Strategy and the Digital Agenda for Europe;
promote spectrum use efficiency in EU
policies, in particular by fostering flexibility and competition;
promote innovation at European level;
address weaknesses in spectrum management
in EU competence areas;
support objectives for combating climate
change and promoting energy efficiency as set in the EU2020 Strategy
and the Digital Agenda for Europe;
protect European policy interests in
international arenas and support Member States in dealing with
third countries;
contribute to promoting the internal
market in equipment, services and networks.
4.16 The Commission says that policy options were
selected based on the potential added value of further EU harmonisation
and coordination and based on the type of measures that could
increase spectrum efficiency and bring economic, social and environmental
benefits. It also says that public consultations and the spectrum
summit demonstrated that key issues often extend beyond electronic
communications across several sectoral interests; that spectrum
sharing opportunities can be expanded by considering all users
while respecting national competences; and that stakeholders clearly
called for the widest possible scope.
4.17 The 26 paragraphs in the Recitals to the text
of the legislative proposal set out the policy points that underlie
the text of the legislative proposals, including:
a
multi-annual radio spectrum plan for the purposes of the establishment
functioning of the internal market is called for by Article 8(a)
of the Framework Directive (2002/21/EC);
the RSPP is subject to the Co-Decision
process involving both the Council and the European Parliament;
Article 114 of the Treaty TFEU is the
appropriate treaty base in that the efficient functioning and
availability of spectrum is necessary for establishment and functioning
of the single market, not only in communications but in a wide
range of other EU policy areas;
strategic planning and harmonisation
of spectrum would enhance the single market for wireless communications,
create new opportunities for innovation, and contribute towards
promoting "smart, sustainable and inclusive growth"
ensuring universal broadband coverage of speeds of at least 30
Mbps for all Europeans by 2020;[35]
the programme, if agreed, will be in
effect until 2015;
recognition that spectrum management
will remain largely a competence of Member States;
also that such management should be in
accordance with EU law, as well as allowing actions in order to
pursue EU policies, noting also that the programme should rely
on Decision 676/2002/EC, [36]
as well as the technical expertise of the European Conference
of Postal and Telecommunication Administrations (CEPT) in order
that any policies covering spectrum which have been agreed by
Council and the European Parliament can be enacted by technical
implementing measures;
optimum use of spectrum may require new
and innovative authorisation solutions, including collective use
of spectrum and infrastructure sharing;
the contribution that the combination
of flexible spectrum usage and spectrum rights trading will make
towards economic growth, together with mechanisms to prevent spectrum
"hoarding" in order to create a dominant market position;
Member States should take ex ante
or ex post actions in order to ensure distortions in the
market place do not occur, thus preventing innovative new services
or applications from being made available;
for spectrum to be managed in the most
efficient manner, there should be an inventory of spectrum, in
particular between 300 MHz and 3 GHz;
the view that radio equipment standardisation
is essential to efficient spectrum use and that this should follow
principles laid down in Directive 1999/5/EC,[37]
commonly known as the RTTE directive, to take account of the increased
risk of interference that comes with ever greater use of wireless
technologies and manage these risks appropriately;
that the 800MHz spectrum should be, in
principle, be made available for electronic communications in
the EU by 2013;
that spectrum requirements exist outside
of the electronic communications sector, with key examples being:
transport safety, e-Health, R&D and public protection;
the International Dimension: that spectrum
management often transcends national borders, that Member States
be mindful of the requirement that they should not enter into
international agreements that prevent them from fulfilling any
of their EU obligations and that the EU should prepare negotiations
and multilateral agreements, including the International Telecommunications
Union (ITU) in accordance with the appropriate powers afforded
to the EU under EU law; and where multilateral negotiations impact
on principles and policies within a wider EU context, the EU should
be able to enact new procedures to defend its interests in multilateral
negotiations; in order to achieve this, the Commission, when taking
into account the opinion of the Radio Spectrum Policy Group (RSPG),
may propose common policy objectives to the European Parliament
and Council.
TEXT OF THE LEGISLATIVE PROPOSAL
4.18 In his detailed and helpful Explanatory Memorandum
of 14 October 2010, the Minister for Culture, Communications and
Creative Industries Department for Business, Innovation and Skills/Department
for Culture, Media and Sport (Ed Vaizey) summarises the text as
follows:
Article 1 Aim & Scope
"This article defines that the aim of the RSPP
is to define a radio spectrum programme for the strategic planning
and harmonisation of the use of spectrum in line with EU legislation
and sets out the relevant directives, namely:
- Directive 1999/5/EC of the
European Parliament and of the Council of 9 March 1999 on radio
equipment and telecommunications terminal equipment and the mutual
recognition of their conformity;
- Directive 2002/20/EC of the European Parliament
and of the Council of 7 march 2002 on the authorisation of electronic
communications networks and services;
- Directive 2002/21/EC of the European Parliament
and of the Council of 7 March 2002 on a common regulatory framework
for electronic communications networks and services;
- 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; and
- Decision No 676/2002/EC of the European Parliament
and of the Council of 7 March 2002 on a regulatory framework for
radio spectrum policy in the European Community (Radio Spectrum
Decision)."
Article 2 Application of General Regulatory
Principles
"This article lays out the regulatory principles
that contribute towards a consistent spectrum management mechanism.
They are:
- to encourage efficient use
of spectrum to meet increasing demand;
- promote a service- and technology-neutral approach,
in order to promote flexibility and encourage innovation;
- apply a least onerous authorisation system; and
- ensure effective competition and thus guarantee
the functioning of the internal market."
Article 3 Policy Objectives
"Building on the principles in Article 2, this
article sets out the policy objectives of the RSPP. They are:
- To make sufficient spectrum
available in a timely manner to support EU policy objectives;
- Maximise flexibility, in order
to promote innovation & investment;
- A service- & technological-neutral approach;
- Allow the possibility of spectrum trading;
- Allow general authorisations;
- Maintain and develop effective competition through
effective regulation where needed;
- Reduce fragmentation of the internal market by
enhancing coordination and harmonisation of technical requirements;
- Facilitate the creation of standards that allow
for flexible and efficient use of spectrum;
- Manage and avoid harmful interference; and
- Have due regard to the harmful effect of electromagnetic
field emissions on human health."
Article 4 Enhance Efficiency and Flexibility
"This article then builds upon the regulatory
principles and policy objectives in Articles 1 to 3. They are:
- Adopt authorisation and allocation
measures appropriate for the development of broadband services;
- Foster the collective and shared use of spectrum;
- Cooperate to develop and harmonise standards;
- Ensure selection conditions and procedures that
promote investment and efficient use of spectrum;
- Develop guidelines on authorisation and procedures
in order to avoid fragmentation of the internal market for that
spectrum that can be traded; and
- Take appropriate measures to avoid spectrum hoarding,
including financial penalties or withdrawal of rights."
Article 5 Competition
"This article deals with actions that should
promote competition, as well as those that could be used to avoid
undue distortions. They are:
- A limit on the amount of spectrum
that can be used by any economic operator;
- Ability to refuse to grant new usage rights in
certain bands that could lead to excessive concentrations and
thus stifle competition;
- Either a prohibition or the imposition of further
conditions on certain transactions whose result would impede competition;
- A possible amendment of existing rights to remedy,
ex post, excessive concentrations of spectrum holdings that would
impede competition; and
- Authorisation procedures that avoid delays and
promote competition."
Article 6 Spectrum for Wireless Broadband
Communications
"This article covers actions that would contribute
towards the objectives of the Digital Agenda for Europe and develop
wireless broadband communication. They are:
- Ensure sufficient spectrum
is allocated in order to achieve the Digital Agenda's targets
of all citizens having wireless broadband of at least 2Mbps by
2015, and at least 30Mbps by 2020;
- Authorise the use of spectrum covered by a number
of Commission Decisions (2.5 to 2.69 GHz, 3.4 to 3.8 GHz and 900/1800
MHz) by January 2012;
- Make available the 800MHz band by January 2012;
- Ensure that actions covering the 800 MHz band
does not have a negative impact on Programme Making and Special
Events (PMSE) users;
- Adopt, without delay, the legislative basis that
would allow spectrum trading;
- Consider the spectrum that would be required
to support satellite-based services that would provide broadband
for the most remote areas of Europe."
Article 7 Spectrum Needs for Specific
EU Policies
"This article covers actions that would contribute
to best meet the spectrum requirements to support specific EU
policies. They are:
- Ensure sufficient spectrum
for scientific monitoring of the environment and space applications,
such as GALILEO and GMES;
- Study and consider authorisation schemes that
contribute to low-carbon policies eg smart grids and metering
systems;
- Ensure sufficient spectrum for the development
of safety services and allow the development of innovative interoperable
public protection and disaster relief services; and
- Review the spectrum requirements for scientific
research in areas that would have a major socio-economic impacts.
Article 8 Inventory and Monitoring of
Existing Uses of and Emerging Needs for Spectrum
"This article sets out the proposal for a pan-EU
inventory, particularly in the 300 MHz to 3 GHz range. The aim
is to ensure that spectrum is being used in the most effective
& efficient manner."
Article 9 International Negotiations
"This article sets out the principles behind
how the EU should approach international negotiations regarding
spectrum (in line with EU law covering internal and external competencies).
It particular it covers the following matters:
- The International Telecommunications
Union (ITU) (where the Presidency should coordinate & lead);
- The World Radio Communications Conference (2012);
- Where Member States and the EU share competence;
- The provision of technical and political support
by the EU for Member States;
- A requirement for Member States to have due regard
to their EU obligations when negotiating spectrum issues with
non-EU states."
Article 10 Cooperation Among Various Bodies
"This Article addresses how the relevant European
institutions who are stakeholders in spectrum management should
cooperate in order to address political and technical issues."
Article 11 Public Consultation
"This Article instructs Member States to hold
public consultations involving all stakeholders whenever appropriate."
Article 12 Reporting
"This Article lays down the requirement for
the Commission to review and report on the RSPP to both Council
and the European Parliament by 2015."
Article 13 Implementation Notification
"This Article spells out the requirement for
Member States to report to the Commission on how the RSPP has
been implemented."
Article 14 Entry into Force & Article
15 Addresses
"These two Articles cover when the RSPP comes
into force (upon publication in the Official Journal of the European
Union) and that it is addressed to Member States."
4.19 The Minister says that the Decision may have
an impact on UK law, and require changes to the Communications
Act 2003 and the Wireless Telegraphy Act 2006. In addition, the
Decision may have an impact on Ofcom as the sectoral regulator
in the UK. As such, he notes that an Impact Assessment is required
and says that it "will be sent in due course."
4.20 On the question of Subsidiarity, the
Minister says that the proposal concerns an area in which the
EU has already exercised its competence, that the proposal therefore
complies with subsidiarity principle as set out in Article 5 of
the Treaty on the European Union, and that the stated aim of the
proposal is that there will be greater consistency in regulation
across Europe.
4.21 The Minister also notes that, though the proposals
are a reserved matter under UK's devolution settlements, the devolved
administrations have an interest and have been consulted in the
preparation of his Explanatory Memorandum.
The Government's view
4.22 The Minister welcomes the recognition that the
Commission is giving 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 proposal for a Radio
Spectrum Policy Programme. He continues as follows:
"Policy Objectives
"Article 3 covers the overall policy objectives
which we would generally endorse. Of note, it includes measures
to prevent and remedy excessive accumulation of spectrum rights.
This featured in the recent Telecommunications Framework review
and is legitimately an issue of concern to the Commission. Ofcom,
as the UK's National Regulatory Authority (NRA) already has competition
powers.
"However, defining what 'anti-competitive hoarding'
means is not as straightforward. One issue is how to prevent actions
such as businesses buying spectrum when it becomes available in
order to secure it for later use being misinterpreted as 'hoarding'.
This is an issue when you take into account that business cycles
and spectrum availability don't always align.
"Authorisation
"Article 4 includes developing 'guidelines on
authorisation conditions and procedures for such bands, in particular
on infrastructure sharing and coverage conditions'. Whilst guidelines
themselves may not be a problem for the UK we need to monitor
this as it might have implications for such issues as harmonised
coverage conditions, duration of rights and spectrum block size.
"However, we would also seek to amend the text
of Article 4 so that it does not make '10 MHz block sizes' (while
making good sense for efficient use of spectrum, especially for
Long-Term Evolution LTE networks) mandatory in any sense.
"Competition
"Article 5 specifically covers issues relating
to competition. It tasks Member States to ensure competition and
avoid market distortions that would affect competition. It suggests
measures that Member States may use, such as spectrum caps or
refusing to allow spectrum use if the competition would be negatively
affected.
"HMG welcomes the wording used which, whilst
stating principles, allows for freedom of choice in order to use
tools for implementation by each Member State without prescribing
which should be used.
"However, we do have some concern that Article
5(3) puts an obligation on MS regarding authorisation and selection
procedures which is rather prescriptive and are thus discussing
and pushing for a somewhat less obligatory approach in the Council
discussions.
"Specific Aims
"Article 6 contains some specific proposals
to support an aim of wireless broadband contributing to a wider
broadband aim of 30 Mbps for all citizens by 2020.
"The specific targets on making the 800 MHz
band available for use by 1st January 2013 and the 2.6GHz band
to be authorised by 1st January 2012 could be potentially problematic
to the UK. We are aware, through discussions taking place at Telecommunication
Council Working Party meetings, that these are shared by a number
of other Member States and that a later date is likely to be agreed
on.
"HMG has already made the Commission aware of
potential interference issues with radars in bands adjacent to
2.6 GHz which could affect authorisation of spectrum and thus
the timing for bringing such spectrum into use. This is a point
recognised by Commission in the initial discussions on this proposal.
"We are also concerned with the proposed coverage
obligations in Article 6 with respect to sparsely populated areas,
which we believe should be a matter for each Member State; again
it looks likely that a less prescriptive approach will be agreed.
"EU Policies
"Article 7 covers spectrum for specific EU policies
such as the GALILEO navigation satellite and as such as it evolves
in discussion, it has the potential to become a shopping list
for spectrum.
"As such we think this Article is slightly at
odds with the principles of service-neutrality re-iterated elsewhere
in the RSPP; this being a point we are making in the Council.
"Inventory and needs
"Article 8 covers an inventory of spectrum use
and future spectrum needs. This is another Article that needs
to be monitored and whilst this potentially sounds beneficial,
putting it into practice may prove challenging and the detail
of this proposal will need to be extrapolated before assessing
the potential benefits.
"EU International Role
"Article 9 considers the EU's role in international
negotiations related to spectrum, principally at the ITU. The
Commission states in Recital 20 that its long term objective is
to become a member in the ITU in its own right (it currently only
has observer status) and in the interim, the article suggests
that the 'EU shall participate in international negotiations dealing
with spectrum matters to defend its interests'. HMG accepts that
there is an enhanced role of the EU with respect to negotiation
on such issues as spectrum that have arisen since the Lisbon Treaty,
but that in the context of the ITU it has to be the Presidency,
in conjunction with the Commission, that coordinates any common
position and represents any EU position in formal meetings.
"However, we remain concerned as to the specific
mechanisms through which the EU would exert such coordination,
within the context of the ITU, without a change to the ITU constitution
and convention."
4.23 The Minister notes the various consultations
that the Commission has carried leading up to the publication
of this document , confirms that the UK (including Ofcom) has
taken a full role during the consultation period and says that
he intends this to continue during the negotiations that will
now begin in the Council and then with the European Parliament.
He does not expect agreement to be reached until late 2011 at
the earliest and perhaps not for 18 months. In the immediate future,
the RSPP proposals will be subject to Council Conclusions at the
December Telecommunications Council. Once the RSPP is formally
ratified, the Government will, the Minister says, again consult
on how to implement in the UK.
Conclusion
4.24 We are grateful to the Minister for his
very thorough and helpful Explanatory Memorandum about this highly
technical and complex subject.
4.25 The Minister has illustrated those aspects
of the proposals about which he has concerns, and which he will
be addressing during the upcoming negotiations. We look to him
to keep the Committee informed appropriately and in a timely fashion
about any proposed revisions. In the first instance, we should
be grateful to know what Conclusions are adopted, and his views
on the extent to which they advance, or if appropriate undermine,
UK interests.
4.26 Meanwhile, we shall retain the document under
scrutiny.
Annex 1: Main elements of telecoms
reform[38]
"The 12 most prominent reforms in the new package
of rules for Europe's telecoms networks and services, as proposed
by the European Commission in November 2007, and agreed between
the negotiators of the European Parliament, the Council of Telecoms
Ministers and the Commission on 5 November 2009 are:
1. A right of European consumers to change,
in 1 working day, fixed or mobile operator while keeping their
old phone number. Currently in the EU it takes on average
8.5 days for a mobile number and 7.5 days for a fixed number to
be changed, with some customers facing a two to three week wait.
In the future, consumers will be able to do this in 1 working
day. In addition, under the new rules, the maximum initial duration
of a contract signed by a consumer with an operator will be no
longer than 24 months. Operators must also offer consumers the
possibility of agreeing to a contract with a maximum duration
of 12 months.
2. Better consumer information: Under
the new telecoms rules, consumers will receive better information
ensuring they understand what services they subscribe to and,
in particular, what they can or cannot do with those communications
services. Consumer contracts must specify, among other things,
information on the minimum service quality levels, as well as
on compensation and refunds if these levels are not met, subscriber's
options to be listed in telephone directories and clear information
on the qualifying criteria for promotional offers.
3. Protecting citizens' rights relating to
internet access by a new internet freedom provision: Following
the strong request of the European Parliament, and after long
negotiations on this point, the new telecoms rules, in a new Internet
freedom provision, now explicitly state that any measures taken
by Member States regarding access to or use of services and applications
through telecoms networks must respect the fundamental rights
and freedoms of citizens, as they are guaranteed by the European
Convention for the Protection of Human Rights and Fundamental
Freedoms and in general principles of EU law. Such measures must
also be appropriate, proportionate and necessary within a democratic
society. In particular, they must respect the presumption of innocence
and the right to privacy. With regard to any measures of Member
States taken on their Internet access (e.g. to fight child pornography
or other illegal activities), citizens in the EU are entitled
to a prior fair and impartial procedure, including the right to
be heard, and they have a right to an effective and timely judicial
review.
4. New guarantees for an open and more 'neutral'
net: The new telecoms rules will ensure that European consumers
have an ever greater choice of competing broadband service providers.
Internet service providers have powerful tools at their disposal
that allow them to differentiate between the various data transmissions
on the internet, such as voice or 'peer-to-peer' communication.
Even though traffic management may allow premium high-quality
services (such as IPTV) to develop and can help ensure secure
communications, the same techniques may also be used to degrade
the quality of other services to unacceptably low levels or to
strengthen dominant positions on the market. That is why, under
the new EU rules, national telecoms authorities will have the
powers to set minimum quality levels for network transmission
services so as to promote "net neutrality" and "net
freedoms" for European citizens. In addition, thanks to new
transparency requirements, consumers must be informed
before signing a contract about the nature of the service
to which they are subscribing, including traffic management techniques
and their impact on service quality, as well as any other limitations
(such as bandwidth caps or available connection speed).
The Commission also made a political commitment to
keep the neutrality of the internet under close scrutiny and to
use its existing powers as well as new instruments available under
the reform package to report regularly on the state of play in
net neutrality to the European Parliament and the Council of Ministers.
5. Consumer protection against personal data
breaches and spam: European citizens' privacy is a priority
of the new telecoms rules. Names, email addresses and bank account
information of the customers of telecoms and internet service
providers, and especially the data about every phone call and
internet session, need to be kept safe from accidentally or deliberately
ending up in the wrong hands. Operators must respond to the responsibility
that comes with processing and storing this information. Therefore,
the new rules introduce mandatory notifications for personal data
breaches the first law of its kind in Europe. This means
that communications providers will be obliged to inform the authorities
and their customers about security breaches affecting their personal
data. This will increase the incentives for better protection
of personal data by providers of communications networks and services.
In addition, the rules concerning privacy and data protection
are strengthened, e.g. on the use of 'cookies' and similar devices.
Internet users will be better informed about cookies and about
what happens to their personal data, and they will find it easier
to exercise control over their personal information in practice.
Furthermore, internet service providers will also gain the right
to protect their business and their customers through legal action
against spammers.
6. Better access to emergency services, 112:
The new telecoms rules will ensure that European citizens gain
better access to emergency services by extending the access requirements
from traditional telephony to new technologies, strengthening
operators' obligation to pass information about caller location
to emergency authorities, and by improving general awareness of
the European emergency number '112'. In addition, provisions on
access to telecoms services for Europeans with disabilities have
been strengthened so that they can benefit from the same usability
of services as other citizens, but by different means. For the
first time, the EU's telecoms rules will include a provision on
the availability of terminal equipment offering the requisite
services and functions for users with disabilities.
7. National telecoms regulators will gain
greater independence: The new telecoms rules reinforce national
telecoms regulators' independence by eliminating political interference
in their day-to-day duties and by adding protection against arbitrary
dismissal for the heads of national regulators.
8. A new European Telecoms Authority that
will help ensure fair competition and more consistency of regulation
on the telecoms markets. The reform creates a very important
tool for making a single European telecoms market a reality: the
new European Telecoms Authority 'BEREC' (Body of European Regulators
for Electronic Communications) that will replace the loose cooperation
behind closed doors that exists today in the 'European Regulators
Group' with a more transparent and more efficient approach. BEREC
decisions will be taken, as a rule, by majority of the heads of
the 27 national telecoms regulators: by a simple majority when
BEREC gives opinions in the context of the Commission's analysis
of remedies notified by national regulators, and by a two thirds
majority in other cases. Such BEREC decisions will be prepared
by an independent supranational Office with expert staff. BEREC
will also advise, support and complement the independent work
of national telecoms regulators, especially when it comes to regulatory
decisions with a cross-border relevance. A decision on the seat
of BEREC still needs to be taken by the Governments of the 27
Member States.
9. A new Commission say on the competition
remedies for the telecoms markets: The new EU telecoms rules
will give the European Commission the power to oversee regulatory
remedies proposed by national regulators (e.g. on the conditions
of access to the network of a dominant operator; or on fixed or
mobile termination rates). The objective is to avoid inconsistent
regulation that could distort competition in the single telecoms
market. When the Commission, in close cooperation with BEREC,
considers that a draft remedy notified by a national regulator
would create a barrier to the single market, the Commission may
issue a recommendation that requires the national regulator to
amend or withdraw its planned remedy.
The new rules also enable the Commission to adopt
further harmonisation measures in the form of recommendations
or (binding) decisions if divergences in the regulatory approaches
of national regulators, including to remedies, persist across
the EU in the longer term, e.g. on broadband access conditions
or on mobile termination rates.
10. Functional separation as a means to overcome
competition problems: National telecoms regulators will gain
the additional tool of being able to oblige telecoms operators
to separate communication networks from their service branches,
as a last-resort remedy. This new remedy has been advocated since
2007 by the European Commission and by the 27 national regulators.
Functional separation can rapidly improve competition in markets
while maintaining incentives for investment in new networks. Functional
separation has been implemented in the UK since January 2006 where
it triggered a surge in broadband connections (from 100.000 unbundled
lines in December 2005 to 5.5 million 3 years later). The new
EU rules on functional separation will add legal certainty for
countries currently moving towards different forms of separation
(Poland, Italy), while ensuring overall consistency for the benefit
of the single market, effective competition and consumer choice.
11. Accelerating broadband access for all
Europeans: Currently, in rural areas of the EU only an average
of 70% of the population can have access to a broadband network
connection. The reform will help in overcoming this "digital
divide" by better managing radio spectrum and by making it
effectively available for wireless broadband services in regions
where building a new fibre infrastructure is too costly; and by
allowing Member States to expand universal service provisions
beyond narrow-band internet access.
The reform in particular puts a much stronger emphasis
on technology and service flexibility in spectrum use, making
it easier for operators to introduce innovative technologies and
services. This increased flexibility will bring important economic
gains and has the potential to generate an estimated additional
0.1% of GDP per annum. In particular, it will allow the "digital
dividend", the radio spectrum freed as a result of the switchover
from analogue to digital TV, to work for the economic recovery
as also stressed in the Commission's recent Communication on transforming
the digital dividend into social benefits and economic growth.
12. Encouraging competition and investment
in next generation access networks: The new rules bring legal
certainty for investment in next generation access (NGA) networks.
These networks, based on new optical fibre and wireless network
technologies, are replacing less efficient traditional copper-wire
networks and will allow high-speed internet connections. The reform
of the telecoms rules reaffirms the importance of competition
in this new sector while at the same time preserving incentives
to invest by taking into account the risks involved in allowing
access to NGA networks and allowing for various cooperative arrangements
between investors and access-seeking operators. In this way, the
new rules will also ensure telecoms operators receive a fair return
on their investments. On the basis of the new rules, the Commission
plans to issue a recommendation for the regulation of access to
NGA networks in the first half of 2010, taking into account the
results of public consultations in 2008 and 2009. The rules governing
the sharing of network elements, such as ducts or in-building
wiring, between operators are also updated by the reform. Besides
improving competition and services for businesses and consumers,
this will also help lower the overall financial costs for operators
of deploying NGA networks."
28 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 2009 L337. Back
29
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 2009 L337. Back
30
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 2009 L337. Back
31
TheEuropeanRegulatorsGroupforelectroniccommunicationsnetworksandserviceswassetupbytheCommissiontoprovideasuitablemechanismforencouragingcooperationandcoordinationbetweennationalregulatoryauthoritiesandtheCommission,inordertopromotethedevelopmentoftheinternalmarketforelectroniccommunicationsnetworksandservices.Buildingonthisexperience,theBodyofEuropeanRegulatorsforElectronicCommunications(BEREC)anditssupportOfficewerecreatedwithintherecentlyapprovedreformoftheEUTelecomrulestoimprovetheconsistencyofimplementationoftheEUregulatoryframework.ThefirstmeetingsoftheBoardofRegulatorsofBERECandtheManagementCommitteeoftheOfficewereheldinBrusselson28January2010.InJuly2010,MemberStatesdecidedthatitspermanentseatwillbeinRiga.Seehttp://berec.europa.eu/Default.htmforfurtherinformationonBEREC. Back
32
ThegeneralideabehindNextGenerationNetworks(NGN)isthatonenetworktransportsallinformationandservices(voice,data,andmediasuchasvideo)byencapsulatingtheseintopackets,asontheInternet.TheInternationalTelecommunicationsUnionthusdefinesNGN)as"apacket-basednetworkabletoprovideTelecommunicationServicestousersandabletomakeuseofmultiplebroadband,QoS-enabledtransporttechnologiesandinwhichservice-relatedfunctionsareindependentoftheunderlyingtransport-relatedtechnologies.Itenablesunfetteredaccessforuserstonetworksandtocompetingserviceprovidersandservicesoftheirchoice.Itsupportsgeneralisedmobilitywhichwillallowconsistentandubiquitousprovisionofservicestousers."Seehttp://www.itu.int/en/pages/default.aspxforfurtherinformation. Back
33
Marketsdefinedby2007/879/EC,CommissionRecommendationof17thDecember2007,onrelevantproductandservicemarketswithintheelectroniccommunicationssectorsusceptibletoexanteregulationinaccordancewith
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
34
In common parlance, the NGA Recommendation. Back
35
A target contained within the Broadband Strategy. Back
36
Decision No 676/2002/EC of the European Parliament and of
the Council of 7 March 2002 on a regulatory framework for radio
spectrum policy in the European Community (Radio Spectrum Decision). Back
37
Directive 1999/5/EC of the European Parliament and of the Council
of 9 March 1999 on radio equipment and telecommunications terminal
equipment and the mutual recognition of their conformity. Back
38
Extracted from http://ec.europa.eu/information_society/policy/ecomm/tomorrow/reform/index_en.htm. Back
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