BRUSSELS -- As the U.S. moves toward mandated digital copyright protection under the FCC’s broadcast flag rules, consumers should expect a similar situation in Europe, a consumer advocate said here Wed. Broadcast flag technology signals consumer electronic devices that certain content is protected and bars some uses of the content, such as Internet redistribution. But the technology also will affect PCs and other consumer electronic devices, said Chris Murray of Consumers Union. The broadcast flag puts open architecture and personal computing at stake, Murray said at a Transatlantic Consumer Dialog (TACD) forum here on copyright in the digital age.
Dugie Standeford
Dugie Standeford, European Correspondent, Communications Daily and Privacy Daily, is a former lawyer. She joined Warren Communications News in 2000 to report on internet policy and regulation. In 2003 she moved to the U.K. and since then has covered European telecommunications issues. She previously covered the U.S. Occupational Safety and Health Administration and intellectual property law matters. She has a degree in psychology from Duke University and a law degree from the University of Tulsa College of Law.
The Italian Parliament’s lower house backed govt.- sponsored legislation that was raising privacy concerns among telcos, Internet service providers, civil liberties groups and the country’s own Data Protection Authority (DPA). The plan, which would require telcos and ISPs to retain Internet and phone traffic data for up to 5 years, was issued by the govt. in Dec. as a “law decree,” meaning without prior parliamentary discussion, said the Associazione per la liberta nella communicazione elettronica interattiva (ALCEI, or Electronic Frontiers Italy). It also must be approved by the Senate, which has a deadline of Feb. 22, after which it dies if not adopted. The DPA said in late Dec. the measure could conflict with constitutional norms on the freedom and secrecy of communications and the free expression of thought.
The Italian Parliament’s lower house backed govt.- sponsored legislation that was raising privacy concerns among telcos, Internet service providers, civil liberties groups and the country’s own Data Protection Authority (DPA). The plan, which would require telcos and ISPs to retain Internet and phone traffic data for up to 5 years, was issued by the govt. in Dec. as a “law decree,” meaning without prior parliamentary discussion, said the Associazione per la liberta nella communicazione elettronica interattiva (ALCEI, or Electronic Frontiers Italy). It also must be approved by the Senate, which has a deadline of Feb. 22, after which it dies if not adopted. The DPA said in late Dec. the measure could conflict with constitutional norms on the freedom and secrecy of communications and the free expression of thought.
Under pressure from the Irish Presidency, the European Parliament (EP) and Council are scurrying to find common ground internally and with each other on a controversial European Commission (EC) directive aimed at beefing up enforcement of intellectual property (IP) rights. With a vote scheduled for the Feb. 10 EP plenary session -- but likely to be pushed back until later that month or March, we're told -- the Presidency is negotiating with both the rapporteur of the EP Legal Affairs (JURI) Committee and shadow rapporteurs from other political groups to find a way to reconcile opposing Council and EP views, a European Union (EU) diplomat said. The directive continues to be controversial, with telcos and ISPs contending it could subject them to massive liability and the consumer electronics industry saying its sanctions weren’t clear enough.
Europe’s Competition Comr. Mario Monti praised a European Commission (EC)/European Regulators Group (ERG) proposal Mon. for setting antitrust remedies in the e- communications market, saying it would move economic analysis to the center stage. Speaking at a public hearing on the draft document on remedies under the new regulatory framework for electronic communications networks and services, Monti called the document a “very substantial contribution to policymaking.” But while he agreed with Information Society Comr. Erkki Liikanen that the issue of remedies was of critical importance to the e-communications sector, he said remedies must be viewed not in isolation but in relation to the nature and aim of regulation and to competition policy in general. Monti stressed the difference between antitrust enforcement and regulatory intervention remedies. Regulatory remedies are imposed ahead of specific problems with the goal of creating a procompetitive environment in the long run, he said, while in the short term giving benefits to end users that the market would offer if it were truly competitive. Antitrust remedies, on the other hand, simply aim to punish behaviors that have occurred in the past and that are viewed as detrimental to the welfare of end users. “In a way,” Monti said, “the aim of regulatory remedies should be to allow antitrust remedies to be the only ones needed in the long term.” He pointed to the “fine balance” between short- term and longer term consideration, saying the issue of regulatory remedies under the new regulatory framework “seems to have sparked rather heated discussions.” One area of contention is between those who advocate a facilities-based competition model and those who favor an access-based model. Monti’s position -- as he made clear last month (CD Dec 11 p4) -- is that the 2 models don’t necessarily contradict one another, he said. “Access services are essential in opening up previously monopolistic market structures,” he said. “Even the ‘purists’ of facilities-based competition, who often happen to enjoy a satisfactory market position in at least one Member State, would probably admit that they would not be able to enter a new market… were it not for the availability of some type of access service.” However, he said, because new entrants must be given the right incentives, the regulatory framework must “privilege” operators that build their own infrastructure because they are more likely to increase competition in the market. To reconcile access- and facilities-based competition, Monti said, the “time dimension” must be taken into account. “National regulatory authorities should provide incentives for competitors to seek access from the incumbent in the shorter term, and to rely increasingly on building their own infrastructure in the longer term,” he said. Monti also said the EC would ensure the “crucial interplay” between infrastructure and content -- which is becoming increasingly blurred -- to prevent it from falling under the control of companies with a high degree of market power. Speaking at the same hearing, Liikanen said new entrants must be allowed access to incumbents’ infrastructure. But, he said, they also must “continually strive to reduce this dependence wherever feasible.” New entrants must be given incentives to make incremental investments in their own infrastructure, Liikanen said. However, he said, because competition between infrastructures sometimes isn’t feasible in the short term, national regulatory authorities will have to clarify the boundaries between replicable and nonreplicable infrastructure and subject the latter to regulation. Moreover, he said, because under the new e-communications regulatory framework regulation is to be imposed only in cases of “enduring market failure,” allowances must be made for emerging markets to develop according to market forces. Any potential abuse of position in an emerging market, Likkanan said, should be dealt with under competition law. Meanwhile, European telcos Mon. criticized the European Union consultation paper outlining how anticompetition remedies should be set under new e-communications regulations. The document, unveiled late last year by the European Commission (EC) and the European Regulators Group (ERG), aims to ensure that antimonopoly remedies are applied consistently across the European Union. But the European Telecom Network Operators’ Assn. (ETNO) called the draft “ill-defined” in many policy areas and said it must be clarified “to avoid the twin risks of perpetual regulations and discouraging investment in crucial e-communications technologies.” ETNO’s comments were part of a comprehensive review of the document. The group took part in Mon.’s public hearing in Brussels on the proposal. Because it’s the final piece in a comprehensive new telecom regulatory framework, one with key commercial implications for the sector, “it is critical that the remedy document’s wording is balanced, consistent and precise,” ETNO said. The group’s criticisms include: (1) The document didn’t define emerging markets, potentially opening the door to “endless regulation covering not only legacy networks but all other new products and services related to them.” (2) The paper’s theoretical approach was out of touch with the real issues governing the telecom sector. “It would have national regulators designing remedies for theoretical competition issues instead of first identifying market failures and then applying a proportionate and temporary remedy to them,” ETNO Dir. Michael Bartholomew said.
The head of a U.K. radio industry group urged the govt. last week to set a date for switching all analog radio to digital. Speaking at a monthly company seminar, GWR Group Exec. Chmn. Ralph Bernard, who also chairs the Digital Radio Development Bureau (DRDB), said digital radio was so successful in the U.K. that the govt. should begin planning for it to replace analog signals. He called on the govt. to allocate new digital spectrum coming available in the next few years to digital audio broadcasting (DAB) and asked broadcasters to use the spectrum to fill in “white spaces” in the country where digital radio wasn’t available.
Citing a growing threat to public service broadcasting (PSB) across Europe, a Council of Europe (CoE) panel called on govts. to commit to strong, independent PSB and bring it into the Internet age. A report last week by the CoE’s Committee on Culture, Science & Education said PSB’s future was under attack by political and economic forces, growing competition from commercial media, media concentration, financial problems and the challenge of adapting to globalization and new technologies. The report is to be debated at the Parliamentary Assembly beginning Mon.
Six U.K. mobile phone operators Mon. unveiled a plan to shield children from pedophiles by preventing them from using adult online services. The code of practice -- developed by Orange, O2, T-Mobile, Virgin Mobile, Vodafone and 3 -- would bar children under 18 from several kinds of commercial content, including online gambling, mobile gaming, chat rooms and Internet access. However, the companies said, it wouldn’t cover traditional premium rate voice or texting services, which were regulated under a separate code of practice. Under the code: (1) Mobile operators would appoint an independent classification body to craft guidelines for classifying commercial content unsuitable for customers under 18. (2) Commercial content providers would have to self-classify as “18” all materials unsuitable for children under 18. (3) Each mobile operator would put such content behind access controls such as subscription-only services and PIN-controlled access, making it available only to customers verified as over 18. (4) Operators would put access controls on all commercial content chat rooms unless they were moderated. (5) Operators would advise parents and children on new mobile devices and services. Because mobile operators have no control over content offered online, they said, they would offer parents ways to filter their Internet access services to seek to block content approximately equivalent to commercial content with an 18 rating. Operators said they would work with law enforcement agencies on reporting content that might violate criminal laws. The code of practice reportedly was developed after consultation with U.K. children’s charities. Late last week, the Children’s Charities’ Coalition for Internet Safety (CHIS) applauded the code but said the “devil is, however, in the detail.” The charities are “anxious to see how the code will be implemented and its effects monitored and reviewed,” CHIS said. The code will make “many people ask why, if the mobile people can do it, the fixed Internet people can’t,” CHIS said. The group called on ISPs to follow mobile operators’ lead “as a matter of urgency.” The Internet Services Providers’ Assn. U.K. hadn’t returned a call seeking comment by our deadline.
A European Commission review of interconnect leased line offers by incumbent telcos is likely to show they still flout antitrust rules, the European Competitive Telecoms Assn. (ECTA) said Wed. As Commission officials and others met to work out final details on information to be collected about the offers, ECTA unveiled a scorecard on partial leased line interconnect agreements it said showed that -- even where incumbents were required by regulators to offer entrants fair prices for the lines -- they had “contrived to frustrate competition by attaching unfair contract terms.” Several incumbents disputed ECTA’s claims.
National telecom regulators must ignore national laws that prevent them from implementing European Union (EU) directives properly, a European Commission (EC) panel ruled Mon. The Article 7 Task Force was reviewing decisions by Finland’s regulator, FICORA, on market definition, findings of significant market power (SMP) and remedies imposed on SMP operators in the market for voice call termination on individual mobile networks. On the basis of its market analysis, FICORA proposed to designate 4 mobile network operators as having SMP, but to impose all antimonopoly obligations available under national law -- such as interconnection, publishing tariff information and using nondiscriminatory pricing -- on only 3 of them. FICORA intended to subject the 4th operator, Alands Mobiltelefon Ab, to less-restrictive obligations. But the EC said FICORA’s proposed remedies contravened the Communications Framework Decision because they were limited to the termination of voice calls originating on a fixed network in Finland. Because the problem identified by FICORA in the market for voice call termination on individual mobile networks is that several players have SMP regardless of the network on which the terminated traffic originates, the remedies shouldn’t be limited on the basis of the originating network, the EC said. Moreover, it said, the regulator’s remedies are not proportionate or justified under the Framework Decision and discriminate between fixed and mobile telephone networks. Finally, the task force said, the Access Directive guarantees undertakings providing e-communications networks or services the right to negotiate interconnection with and, where applicable, obtain access to or interconnection from other providers of publicly available communications networks. FICORA’s proposed measures deny that right to operators of fixed networks in Finland, the EC said. The panel also faulted FICORA for failing to impose the same remedies on Alands as on the other SMP operators and for not specifying how it would assess the telcos’s cost-accounting procedures. Referring to case law of the European Court of Justice, the EC said, “the primacy of Community law requires any provision of national law which contravenes a Community rule to be disapplied, regardless of whether it was adopted before or after that rule.” The duty to ignore national laws applies not only to courts but also to organs of the state such as telecom regulators, the EC said. The Commission doesn’t have the power to revoke FICORA’s remedies directly but can do so through an infringement procedure, which it said it would do, the European Competitive Telecom Assn. (ECTA) said. ECTA called the EC’s point about a regulator’s responsibility “very significant.” “Regardless of what occurs during an infringement proceeding process, national courts have an obligation to protect parties from a failure of a national administrative body, including a regulator, to apply EC law correctly.” In fact, one attorney said, failing to implement directives properly could leave national regulatory authorities (NRAs) open to claims from parties damaged by their decisions. The task force’s decision also will serve as a precedent for Germany’s NRA, ECTA Managing Dir. Roger Wilson said. “The conditions of supply and demand are the same for mobile terminations everywhere,” Wilson said.