6xt4hpnp, no title

Topics: Connected Continent
Organisations: EBU

connected continentebuproposalsamendments

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22.11.2013

EBU

POSITION RELATING TO THE

COMMISSION

PROPOSAL FOR A

REGULATION

LAYING DOWN MEASURES CONCERNING THE

EUROPEAN

SINGLE MARKET FOR

ELECTRONIC COMMUNICATIONS AND TO ACHIEVE A

CONNECTED CONTINENT

The present document represents the EBU position relating to the European Commission proposal concerning the European single market for electronic communications and to achieve a Connected Continent.

1

It focuses on the provisions

on net neutrality as well as radio spectrum.

The EBU supports a strong regulatory framework for net neutrality at EU level, reflecting the fact that the openness and non-discriminatory features of the Internet are key drivers for innovation, economic efficiency and safeguarding media freedom and pluralism. Thus, EBU and its members welcome the introduction of net neutrality provisions in the proposed EU Regulation. The EBU believes that the Commission

’s

proposal provides a good basis for the discussion in co-decision procedure but that it requires further improvements and clarifications in the following key areas:

-

Clearly recognize that the open Internet is a key driver for innovation, economic efficiency but also for safeguarding media freedom and pluralism

-

Clarify the definitions of an “Internet access service” and a “specialised service”

in order to guarantee a dynamic co-existence between these different services

-

Clarify the relationship between an “Internet access service” and a “specialised ervice”: the open Internet should remain the norm, not become the exception

and specialised (managed) services cannot be offered by ISPs at the expense of the development of the open public Internet

-

Address the uncertainty regarding the rule on Assured Service Quality connectivity products

-

Strengthen and simplify the rule according to which no blocking nor throttling of content on the Internet is allowed

-

Improve transparency and facilitate monitoring by end-users

The EBU takes note of the fact that the proposed rules on radio spectrum apply to harmonised radio spectrum for wireless broadband communications. In summary, it would warmly welcome improvements to the Commission proposal based on the following key messages:

-

Recognise the role of spectrum for radio and TV broadcasting as well as

Member states’ competence to safeguard

cultural diversity and media pluralism

-

Clarify the

notion of “harmonised radio spectrum for wireless broadband

communications”

-

Take existing use of spectrum as well as the costs of vacating spectrum into account

-

Address potential interference issues

1

Proposal for a Regulation laying down measures concerning the European single market for electronic

communications and to achieve a Connected Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009 and (EU) No 531/2012 [COM(2013) 627 final].

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I.

NET NEUTRALITY

1. Recognize that the open Internet is a key driver for innovation, economic

efficiency but also for safeguarding media freedom and pluralism

Article 24(1)

EC proposal

EBU proposed amendment

(1) National regulatory authorities shall closely monitor and ensure the effective ability of end users to benefit from the freedoms provided for in Article 23 (1) and (2), compliance with Article 23 (5), and the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialised ervices. They shall, in cooperation with other competent national authorities, also monitor the effects of specialised services on cultural diversity and innovation. National regulatory authorities shall report on an annual basis to the Commission and BEREC on their monitoring and findings.

(1) National regulatory authorities shall closely monitor and ensure the effective ability of end users to benefit from the freedoms provided for in Article 23 (1) and (2), compliance with Article 23 (5), and the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialised ervices. They shall, in cooperation with other competent national authorities, also monitor the effects of specialised services on cultural and linguistic diversity, media freedom and pluralism and innovation. National regulatory authorities shall report on an annual basis to the Commission and BEREC on their monitoring and findings.

Recital 45

EC proposal

EBU proposed amendment

(45) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, content and application providers and internet service providers. The existing regulatory framework aims at promoting the ability of end-users to access and distribute information or run applications and services of their choice. Recently, however, the report of the Body of European Regulators for Electronic Communications (BEREC) on traffic management practices published in May 2012 and a study, commissioned by the

(45) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, content and application providers and internet service providers. The openness and non-discriminatory features of the Internet are key drivers for innovation, economic efficiency as well as safeguarding media freedom and pluralism and cultural diversity. The existing regulatory framework aims at promoting the ability of end-users to access and distribute information or run applications and services of their choice.

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Executive Agency for Consumers and Health and published in December 2012, on the functioning of the market of internet access and provision from a consumer perspective, showed that a significant number of end-users are affected by traffic management practices which block or slow down specific applications. These tendencies require clear rules at the Union level to maintain the open internet and to avoid fragmentation of the single market resulting from individual Member States' measures.

Recently, however, the report of the Body of European Regulators for Electronic Communications (BEREC) on traffic management practices published in May 2012 and a study, commissioned by the Executive Agency for Consumers and Health and published in December 2012, on the functioning of the market of internet access and provision from a consumer perspective, showed that a significant number of end-users are affected by traffic management practices which block or slow down specific applications. These tendencies require clear rules at the Union level to maintain the open internet and to avoid fragmentation of the single market resulting from individual Member States' measures.

Justification

The Commission proposal rightly acknowledges that the Internet has developed as an open platform for innovation with low access barriers for end-users, content and application providers and internet service providers. However, the open Internet not only remains a key driver for innovation, economic efficiency but also safeguarding media freedom, pluralism and cultural diversity.

There is an inevitable link between the regulation of transmission and the regulation of content which must be taken into account. Such an approach is fully compatible with

the logic behind the EU (telecoms) Framework Directive which stated that “the

eparation between the regulation of transmission and regulation of content does not prejudice the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection.

”2

2

Recital 5 of Directive 2002/21/EC (Framework Directive) as revised by Directive 2009/140/EC and

Regulation 544/2009.

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2. Clarify the definitions of an

“Internet access service” and

a

“specialised

ervice”

Article 2(14) and (15)

EC proposal

EBU proposed amendment

(14) "internet access service" means a publicly available electronic communications service that provides connectivity to the internet, and thereby connectivity between virtually all end points connected to the internet, irrespective of the network technology used;

(14) "internet access service" means a publicly available electronic communications service that provides connectivity to the internet, and thereby connectivity between virtually all end points connected to the internet, irrespective of the network technology used; It enables end-users to run any application utilising an electronic communications network based on the best effort principle;

(15)

"specialised

ervice"

means

an

electronic communications service or any other service that provides the capability to access specific content, applications or ervices, or a combination thereof, and whose technical characteristics are controlled from end-to-end or provides the capability to send or receive data to or from a determined number of parties or endpoints; and that is not marketed or widely used as a substitute for internet access service;

(15)

"specialised

ervice"

means

an

electronic communications service or any other service that provides the capability to access specific content, applications or ervices, or a combination thereof, and whose technical characteristics are controlled from end-to-end or provides the capability to send or receive data to or from a determined number of parties or endpoints. It is provided using the Internet Protocol and operated within closed electronic communications networks that rely on admission control. A specialised service is shall not be marketed or widely used as a ubstitute for internet access service;

Justification

The Commission introduces a new and useful distinction between an Internet access ervice and a specialised service. It is important that the distinction is as clear as possible. The suggestions above are based on the recent BEREC Guidelines for quality of service in the scope of net neutrality (BOR (12) 131 of 26 November 2012).

3

3http://berec.europa.eu/eng/document_register/subject_matter/berec/regulatory_best_practices/guidelines/

1101-berec-guidelines-for-quality-of-service-in-the-scope-of-net-neutrality

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Article 23(2)

EC proposal

EBU proposed amendment

2. End-users shall also be free to agree with either providers of electronic communications to the public or with providers of content, applications and ervices on the provision of specialised ervices operated with an enhanced quality of service.

In

order

to

enable

the provision

of

pecialised services, providers of content, applications and services and providers of electronic communications to the public hall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity. The provision of pecialised services shall not impair in a recurring or continuous manner the general quality of internet access ervices.

2. End-users shall also be free to agree with either providers of electronic communications to the public or with providers of content, applications and ervices on the provision of specialised ervices operated in closed electronic networks with an enhanced quality of ervice.

In

order to

enable

the provision

of

pecialised services, providers of content, applications and services and providers of electronic communications to the public hall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity. The provision of pecialised services shall not impair in a recurring or continuous manner the general quality of internet access ervices.

Justification

See justification in relation to suggestion in Article 2(14)-(15).

Article 23(2bis)(new)

EC proposal

EBU proposed amendment

/

2bis. Vertically integrated providers of electronic communications to the public shall not discriminate against traffic from providers of content, applications and services which provide contents, services or applications competing with their own ervices or with services provided on the basis of exclusive arrangements.

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Justification

As recently highlighted by BEREC in a report on differentiation practices (BoR (12) 132),

4

ISPs have clear incentives to engage in differentiation practices. Addressing the

risk of anti-competitive arrangements and preventing new forms of traffic discrimination hould stand out clearly in a provision aimed at safeguarding net neutrality. These risks are particularly high in case of vertically integrated companies, which have an obvious incentive to offer better access to their own content offers than those of others.

3. Clarify the relationship between Internet access services and specialised

ervices

Article 23(2)

EC proposal

EBU proposed amendment

2. End-users shall also be free to agree with either providers of electronic communications to the public or with providers of content, applications and ervices on the provision of specialised ervices with an enhanced quality of ervice.

In

order

to

enable

the provision

of

pecialised

ervices

to

end-users,

providers of content, applications and ervices and providers of electronic communications to the public shall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity. The provision of specialised ervices shall not impair in a recurring or continuous manner the general quality of internet access services.

2. End-users shall also be free to agree with either providers of electronic communications to the public or with providers of content, applications and ervices on the provision of specialised ervices with an enhanced quality of ervice.

In

order to

enable

the provision

of

pecialised

ervices

to

end-users,

providers of content, applications and ervices and providers of electronic communications to the public shall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity. The provision of specialised ervices shall not impair in a recurring or continuous manner the general quality of internet access services.

Justification

The introduction of the principle that specialised services shall not impair Internet access services can be welcomed. However, the use of the terms "recurring" and "continuous" as proposed by the Commission is vague and leaves room for discussion and interpretation. The proposed deletions simplify the general rule that specialised ervices shall not impair the quality of Internet access services. It is then up to NRAs and the courts to implement the rule.

4

http://berec.europa.eu/eng/document_register/subject_matter/berec/reports/1094-berec-

report-on-differentiation-practices-and-related-competition-issues-in-the-scope-of-net-neutrality

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Recital 45

(45) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, content and application providers and internet service providers. The existing regulatory framework aims at promoting the ability of end-users to access and distribute information or run applications and services of their choice. Recently, however, the report of the Body of European Regulators for Electronic Communications (BEREC) on traffic management practices published in May 2012 and a study, commissioned by the Executive Agency for Consumers and Health and published in December 2012, on the functioning of the market of internet access and provision from a consumer perspective, showed that a significant number of end-users are affected by traffic management practices which block or slow down specific applications. These tendencies require clear rules at the Union level to maintain the open internet and to avoid fragmentation of the single market resulting from individual Member States' measures.

(45)The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, content and application providers and internet service providers. The existing regulatory framework aims at promoting the ability of end-users to access and distribute information or run applications and services of their choice. Recently, however, the report of the Body of European Regulators for Electronic Communications (BEREC) on traffic management practices published in May 2012 and a study, commissioned by the Executive Agency for Consumers and Health and published in December 2012, on the functioning of the market of internet access and provision from a consumer perspective, showed that a significant number of end-users are affected by traffic management practices which block or slow down specific applications. These tendencies require clear rules at the Union level to maintain the open internet and to avoid fragmentation of the single market resulting from individual Member States' measures. The best effort open Internet hould not be undermined by the development of specialised services or traffic with a guaranteed quality of ervice. The open internet should remain the norm, not the exception.

Justification

The proposed suggestion contributes to improving the clarity in the relationship between an Internet access service and a specialised service. The open Internet hould remain the norm, not become the exception.

4. Address uncertainty regarding the Assured Service Quality (ASQ)

connectivity product (Article 19)

With its proposed Article 19, the Commission seeks to promote the availability of connectivity products with assured service quality (ASQ) that enable communication paths across network domains and across network borders both within and between member States. As already mentioned in its reply to the 2012 Commission consultation on net neutrality, the EBU reiterates that IP interconnection agreements have

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developed so far without any significant regulatory intervention and that t

oday’s

arrangements reflect the best effort principle and have so far been crucial for the

Internet’s contribution to growth and innovation and for end-users

to reach all

destinations on the Internet.

The Commission proposal fails to sufficiently demonstrate why such a proposal is really needed. BEREC recently described the particular proposal included in Article 19 as an unjustified regulatory burden and argued that

“QoS products have been available for

more than a decade, and there is no legal or regulatory impediment to the development or provision of such products. Should there be demand for a common ASQ product, it hould be developed by operators themselves in a market-driven process.

”5

Furthermore, while

Article 19

relates

to the

relationship between

electronic

communication providers and not the relationship between an ISP and the end-user, the Commission explanatory note (on page 11 of the proposal) explains that Article 19 ultimately aims to enable new types of online services. Provided that, as opposed to ASQ connectivity products, new online services will target the end-user, it makes sense that the Commission sheds more clarity on the relationship between Article 19 and Article 23.

The EBU is of the opinion that the case for a rule as included in Article 19 is not ufficiently made until this day and calls upon European co-legislators to request the European Commission to urgently clarify the rule proposed in Article 19.

5. Strengthen and simplify t

he „no

blocking/no throttling

rule

The EBU points out that, under the existing EU regulatory framework, end-users are currently already free to enter into agreements on data volumes and speeds with providers of Internet access services. Thus, it welcomes amendment 6 of the European

Parliament’s Internal Market and Consumer Protection Committee (IMCO)

draft opinion

in which MEP Harbour proposes to delete the second sentence of Article 23, paragraph 1. For reason of legal clarity and consistency with this amendment, Article 23, paragraph 5 should be amended as follows:

Article 23(5)

EC proposal

EBU proposed amendment

5. Within the limits of any contractually agreed data volumes or speeds for internet access services, providers of internet access services shall not restrict the freedoms provided for in paragraph 1 by blocking, slowing down, degrading or discriminating against specific content, applications or services, or specific classes thereof, except in cases where it

5. Within the limits of any contractually agreed data volumes or speeds for internet access services, Providers of internet access services shall not restrict the freedoms provided for in paragraph 1 by, blocking, slowing down, degradeing or discriminateing against specific content, applications or services, or specific classes thereof, except in cases where it

5

http://berec.europa.eu/eng/news_consultations/whats_new/1673-berec-views-on-the-proposal-for-a-

regulation-laying-down-measures-to-complete-the-european-single-market-for-electronic-communicationsand-to-achieve-a-connected-continent

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is necessary to apply reasonable traffic management measures. Reasonable traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:

a) implement a legislative provision or a court order, or prevent or impede serious crimes; b) preserve the

integrity

and

ecurity of the network, services provided via this network, and the end-users' terminals; c) prevent the transmission of unsolicited communications to end-users who have given their prior consent to such restrictive measures; d)

minimise

the

effects

of

temporary or exceptional network congestion provided that equivalent types of traffic are treated equally.

Reasonable traffic management shall only entail processing of data that is necessary and proportionate to achieve the purposes et out in this paragraph.

is necessary to apply reasonable traffic management measures. Reasonable traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:

a)

implement

a

legislative

provision or a court order, or prevent or impede serious crimes; b) preserve the integrity and ecurity of the network, services provided via this network, and the end-users' terminals; c) prevent the transmission of unsolicited communications to end-users who have given their prior consent to such restrictive measures; d)

minimise

the

effects

of

temporary or exceptional network congestion provided that equivalent types of traffic are treated equally.

Reasonable traffic management shall only entail processing of data that is necessary and proportionate to achieve the purposes et out in this paragraph.

Justification

The proposed amendment clarifies paragraph 5 by stating that any blocking, slowing down or discriminatory practice against specific content, applications or services is not allowed

except for the stated exceptions. The proposed Commission’s phrase starting

with

“Within the limits of any contractually agreed ...”

left room for divergent

interpretations.

Recital 47

EC proposal

EBU proposed amendment

(47) In an open internet, providers of electronic communications to the public hould, within contractually agreed limits on data volumes and speeds for internet access services, not block, slow down, degrade or discriminate against specific content, applications or services or pecific classes thereof except for a limited number of reasonable traffic management measures. Such measures

(47) In an open internet, providers of electronic communications to the public hould, within contractually agreed limits on data volumes and speeds for internet access services, not block, slow down, degrade or discriminate against specific content, applications or services or pecific classes thereof except for a limited number of reasonable traffic management measures. Any price

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hould be transparent, proportionate and non-discriminatory. Reasonable traffic management encompasses prevention or impediment of serious crimes, including voluntary actions of providers to prevent access to and distribution of child pornography. Minimising the effects of network congestion should be considered reasonable provided that network congestion occurs only temporarily or in exceptional circumstances.

discrimination

or

discriminatory

conditions on volumes and data rates against specific content, applications or services should be prohibited. Reasonable traffic management Such measures should be transparent, proportionate and non-discriminatory. Reasonable traffic management encompasses prevention or impediment of serious crimes, including voluntary actions of providers to prevent access to and distribution of child pornography. Minimising the effects of network congestion should be considered reasonable provided that network congestion occurs only temporarily or in exceptional circumstances.

Justification

Discrimination against specific content, applications or services can take various forms. The risk for price surcharges by ISPs has been articulated by a report by BEREC

6

as

well as national NRAs (e.g. OFCOM).

6. Improve transparency and facilitate monitoring by end-users

Article 25 (1)

EC proposal

EBU proposed amendment

1. Providers of electronic communications to the public shall, save for offers which are individually negotiated, publish transparent, comparable, adequate and up-to-date information on: e) internet access services, where offered, pecifying the following: (i) actually available data speed for download and upload in the end-user's Member State of residence, including at peak-hours; (ii) the level of applicable data volume limitations, if any; the prices for increasing the available data volume on an ad hoc or lasting basis; the data speed, and its cost,

1. Providers of electronic communications to the public shall, save for offers which are individually negotiated, publish transparent, comparable, adequate and up-to-date information on: e) internet access services, where offered, pecifying the following: (i) actually available

data speed

for

download and upload in the end-user's Member State of residence, including at peak-hours; and the means for endusers to monitor at any moment the current available data speed for download and upload and a breakout of the actual delivered data speed during the contractual period;

6

http://berec.europa.eu/eng/document_register/subject_matter/berec/reports/1094-berec-

report-on-differentiation-practices-and-related-competition-issues-in-the-scope-of-net-neutrality

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available after full consumption of the applicable data volume, if limited; and the means for end-users to monitor at any moment the current level of their consumption;

(iii)

a

clear

and

comprehensible

explanation as to how any data volume limitation, the actually available speed and other quality parameters, and the imultaneous use of specialised services with an enhanced quality of service, may practically impact the use of content, applications and services;

(iv) information on any procedures put in place by the provider to measure and hape traffic so as to avoid congestion of a network, and on how those procedures could affect service quality and the protection of personal data;

(ii) the level of applicable data volume limitations, if any; the prices for increasing the available data volume on an ad hoc or lasting basis; the data speed, and its cost, available after full consumption of the applicable data volume, if limited; and the means for end-users to monitor at any moment the current level of their consumption;

(iii)

a

clear

and

comprehensible

explanation as to how any data volume limitation, the actually available speed and other quality parameters, and the imultaneous use of specialised services with an enhanced quality of service, may practically impact the use of content, applications and services;

(iv) information on any procedures put in place by the provider to measure and hape traffic so as to avoid congestion of a network, and on how those procedures could affect service quality and the protection of personal data; and the means for end-users to monitor the actual traffic shaping that is used;"

Justification

Speeds and traffic shaping should be verifiable and measurable for end-users.

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II. SPECTRUM

1. Recognize the role of spectrum for radio and TV broadcasting as well as

Member States‟ competence

to safeguard cultural diversity and media

pluralism

Recital 17

EC proposal

EBU proposed amendment

(Recital 17) Radio spectrum is a public good and an essential resource for the internal market for mobile, wireless broadband, and satellite communications in the Union. Development of wireless broadband communications contributes to the implementation of the Digital Agenda for Europe and in particular to the aim of ecuring access to broadband at a speed of no less than 30 Mbps by 2020 for all Union citizens and of providing the Union with the highest possible broadband peed and capacity. However, the Union has fallen behind other major global regions - North America, Africa and parts of Asia - in terms of the roll-out and penetration of the latest generation of wireless broadband technologies that are necessary to achieve those policy goals. The piecemeal process of authorising and making available the 800 MHz band for wireless broadband communications, with over half of the Member States seeking a derogation or otherwise failing to do so by the deadline laid down in the Radio Spectrum Policy Programme (RSPP) Decision 243/2012 of the European Parliament and the Council, testifies to the urgency of action even within the term of the current RSPP. Union measures to harmonise the conditions of availability and efficient use of radio spectrum for wireless broadband communications pursuant to Decision 676/2002/EC of the European Parliament and the Council have not been sufficient to address this problem.

(Recital 17) Radio spectrum is a public good and an essential resource for the internal market for sectors and services including mobile, wireless broadband, and satellite communications and TV and radio broadcasting in the Union. Development of wireless broadband communications contributes to the implementation of the Digital Agenda for Europe and in particular to the aim of ecuring access to broadband at a speed of no less than 30 Mbps by 2020 for all Union citizens and of providing the Union with the highest possible broadband peed and capacity. However, the Union has fallen behind other major global regions - North America, Africa and parts of Asia - in terms of the roll-out and penetration of the latest generation of wireless broadband technologies that are necessary to achieve those policy goals. The piecemeal process of authorising and making available the 800 MHz band for wireless broadband communications, with over half of the Member States seeking a derogation or otherwise failing to do so by the deadline laid down in the Radio Spectrum Policy Programme (RSPP) Decision 243/2012 of the European Parliament and the Council, testifies to the urgency of action even within the term of the current RSPP. Union measures to harmonise the conditions of availability and efficient use of radio spectrum for wireless broadband communications pursuant to Decision 676/2002/EC of the European Parliament and the Council have not been sufficient to address this problem.

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Justification

Currently, Digital Terrestrial Television (DTT) is the most popular means of receiving TV in the EU. Four in ten households in the EU access television through DTT.

7

It is

forecast to be a major TV platform for the foreseeable future (beyond 2030 according to Ofcom (UK) and beyond 2020-25 according to CSA (France). Its value must be referenced.

Article 8(2)

(2) This section shall be without prejudice to the right of the Member States to benefit from fees imposed to ensure the optimal use of radio spectrum resources in accordance with Article 13 of Directive 2002/20/EC and to organise and use their radio spectrum for public order, public ecurity and defence purposes.

(2) This section shall be without prejudice to the right of the Member States to benefit from fees imposed to ensure the optimal use of radio spectrum resources in accordance with Article 13 of Directive 2002/20/EC and to organise and use their radio spectrum for public order, public ecurity, and defence purposes and to pursue general interest objectives, in particular with regard to audiovisual and media policies.

Justification

The safeguards included in the framework of Directives 2002/21/EC and 2002/20/EC as well as Decision 243/2012/EU (RSPP) to take account particular general interest objectives such as cultural diversity and media pluralism still apply and this should be clarified in the Commission proposal.

Recital 18

(Recital 18) The application of various national policies creates inconsistencies and fragmentation of the internal market which hamper the roll-out of Union-wide ervices and the completion of the internal market for wireless broadband communications. It could in particular create unequal conditions for access to uch services, hamper competition between undertakings established in different Member States and stifle investments in more advanced networks and technologies and the emergence of innovative services, thereby depriving citizens and businesses of ubiquitous integrated high-quality services and wireless broadband operators of increased efficiency gains from large

(Recital 18) The application of various national policies creates inconsistencies and fragmentation of the internal market which hamper the roll-out of Union-wide ervices and the completion of the internal market for wireless broadband communications. It could in particular create unequal conditions for access to uch services, hamper competition between undertakings established in different Member States and stifle investments in more advanced networks and technologies and the emergence of innovative services, thereby depriving citizens and businesses of ubiquitous integrated high-quality services and wireless broadband operators of increased efficiency gains from large

7

Special EuroBarometer 396, e-Communications Household Survey (requested by European

Commission, DG Connect), August 2013.

PAGE

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cale

more

integrated

operations.

Therefore, action at Union level regarding certain aspects of radio spectrum assignment should accompany the development of wide integrated coverage of advanced wireless broadband communications services throughout the Union. At the same time, Member States hould retain the right to adopt measures to organise their radio spectrum for public order, public security and defence.

cale

more

integrated

operations.

Therefore, action at Union level regarding certain aspects of radio spectrum assignment should accompany the development of wide integrated coverage of advanced wireless broadband communications services throughout the Union. At the same time, Member States hould retain the right to adopt measures to organise their radio spectrum for public order, public security and defence, and to pursue general interest objectives, in particular with regard to audiovisual and media policies.

Justification

The safeguards included in the framework of Directives 2002/21/EC and 2002/20/EC as well as Decision 243/2012/EU (RSPP) to take account particular general interest objectives such as cultural diversity and media pluralism still apply and this should be

clarified in the Commission’s proposal.

2. Clarify t

he notion of “harmonised spectrum”

Article 2(8)

EC proposal

EBU proposed amendment

(8)

"harmonised

radio

pectrum

for

wireless

broadband

communications"

means radio spectrum for which the conditions of availability, efficient use are harmonised at Union level, in particular pursuant to Decision 676/2002/EC of the European Parliament and the Council, and which serves for electronic communications services other than broadcasting;

(8)

"harmonised

radio

pectrum

for

wireless

broadband

communications"

means radio spectrum for which the conditions of availability, efficiency and primary use are harmonised at Union level in accordance with Directive 2002/21/EC

8,

in particular pursuant to and

with

Decision

676/2002/EC

of

the

European Parliament and the Council, and which serves for electronic communications services other than broadcasting;

8

Directive 2002/21/EC (Framework Directive) (as amended by Directive 2009/140/EC).

PAGE

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Article 8(1)

EC proposal

EBU proposed amendment

(1) This section shall apply to harmonised radio spectrum for wireless broadband communications.

(1) This section shall apply to harmonised radio spectrum for wireless broadband communications in accordance with Article 8a and 9 of Directive 2002/21/EC.

Justification

The reference to Directive 2002/21/EC is important as it guarantees that both Member tates and the European Parliament are involved in EU decisions with regard to trategic planning and harmonisation of the use of radio spectrum (as was the case with the Radio Spectrum Policy Programme). The decision to allocate or harmonise radio spectrum is a political decision. This Directive also guarantees that certain general interest objectives such as cultural diversity and media pluralism are taken into account.

Recital 20

EC proposal

EBU proposed amendment

(20) Coordination and consistency

of

rights of use for radio spectrum should be improved, for the bands which have been harmonised for wireless fixed, nomadic and mobile broadband communications. This includes the bands identified at ITU level for International Mobile Telecommunications (IMT) Advanced ystems, as well as bands used for radio local area networks (RLAN) such as 2.4 GHz and 5 GHz. It should also extend to bands that may be harmonised in the future for wireless broadband communications, as envisaged in Article 3(b) of the RSPP and in the RSPG Opinion on "Strategic challenges facing Europe in addressing the growing radio pectrum demand for wireless broadband" adopted on 13 June 2013, such as, in the near future, the 700 MHz, 1.5 GHz and 3.8-4.2 GHz bands.

(20) Coordination and consistency

of

rights of use for radio spectrum should be improved, at least for the bands which have been harmonised for wireless fixed, nomadic and mobile broadband communications. This includes the bands identified at ITU level for International Mobile Telecommunications (IMT) Advanced systems, as well as bands used for radio local area networks (RLAN) such as 2.4 GHz and 5 GHz. It shcould also extend to bands that may be harmonised in the future for wireless broadband communications in accordance with Article 8a and 9 of Directive 2002/21/EC, as envisaged in Article 3(b) of the RSPP and in the RSPG Opinion on "Strategic challenges facing Europe in addressing the growing radio spectrum demand for wireless broadband" adopted on 13 June 2013, such as, in the near future, the 700 MHz, 1.5 GHz and 3.8-4.2 GHz bands.

PAGE

16/19

Justification

While the coordinated approach proposed by the Commission is only reserved to harmonised spectrum, Recital 20 of the proposed Regulation adds to this spectrum

“bands

that may be harmonised in the future for wireless broadband communications

.”

It refers in particular to the 700 MHz and suggests that both Article 3(b) of the 2012 RSPP and the RSPG opinion on spectrum demand for wireless broadband envisage this. This sentence creates the wrong impression that a political decision at EU level regarding the 700 MHz has already been taken. In addition, the 2012 RSPP did not contain any particular reference to the 700 MHz band.

3. Take existing users of spectrum as well as the costs of vacating spectrum

into account

Article 10 (1)(2)(3)

EC proposal

EBU proposed amendment

1. When determining the amount and type of radio spectrum to be assigned in a given procedure for granting rights of use for radio spectrum, the national competent authorities shall have regard to the following:

(a) the technical characteristics of different available radio spectrum bands,

(b) the possible combination in a single procedure of complementary bands; and

(c) the relevance of coherent portfolios of radio spectrum rights of use in different Member States to the provision of networks or services to the entire Union market or a significant part thereof.

2. When determining whether to specify any minimum or maximum amount of radio spectrum, which would be defined in respect of a right of use in a given band or in a combination of complementary bands, national competent authorities shall ensure:

(a) the most efficient use of the radio pectrum in accordance with Article 9(4)(b), taking into account the characteristics of the band or bands concerned;

(b)

efficient

network

investment

in

1. When determining the amount and type of radio spectrum to be assigned in a given procedure for granting rights of use for radio spectrum, the national competent authorities shall have regard to the following:

(a) the technical characteristics and the current and planned use of different available radio spectrum bands,

(b) the efficient use of the bands already granted to wireless broadband communications;

(c)

the

nature

of

market

demand

justifying the assignment of additional pectrum for wireless broadband communications

(bd) the possible combination in a single procedure of complementary bands; and

(ce) the relevance of coherent portfolios of radio spectrum rights of use in different Member States to the provision of networks or services to the entire Union market or a significant part thereof.

2. When determining whether to specify any minimum or maximum amount of radio spectrum, which would be defined in respect of a right of use in a given band or in a combination of complementary bands,

PAGE

17/19

accordance with Article 9(4)(a).

3. National competent authorities shall ensure that the fees for rights of use for radio spectrum, if any:

(a) appropriately reflect the social and economic value of the radio spectrum, including beneficial externalities;

(b)

avoid

under-utilisation

and

foster

investment in the capacity, coverage and quality of networks and services;

(c)

avoid

discrimination

and

ensure

equality of opportunity between operators, including between existing and potential operators;

(d)

achieve

an

optimal

distribution

between immediate and, if any, periodic payments, having regard in particular to the need to incentivise rapid network rollout and radio spectrum utilisation in accordance with Article 9(4)(b) and (e).

...

national

competent

authorities

hall

ensure:

(a) the most efficient use of the radio pectrum in accordance with Article 9(4)(b), taking into account the characteristics and the current and planned use of the band or bands concerned;

(b)

efficient

network

investment

in

accordance with Article 9(4)(a).

3. National competent authorities shall ensure that the fees for rights of use for radio spectrum, if any:

(a)

appropriately

reflect

the

ocial,

cultural and economic value of the radio pectrum, including beneficial externalities;

(b) take account of costs of vacating existing users of the radio spectrum, if any;

(bc) avoid under-utilisation and foster investment in the capacity, coverage and quality of networks and services;

(cd)

avoid

discrimination

and

ensure

equality of opportunity between operators, including between existing and potential operators;

(de)

achieve

an

optimal

distribution

between immediate and, if any, periodic payments, having regard in particular to the need to incentivise rapid network rollout and radio spectrum utilisation in accordance with Article 9(4)(b) and (e).

...

Justification

The proposal lacks appropriate consideration of existing users of the radio spectrum. Section 1 (Articles 8 to 16) does not request national authorities to consider the current use of spectrum before it is allocated/harmonised for wireless broadband.

This has an impact on the costs of vacating spectrum and on a new interference ituation which needs to be handled. There is no obligation imposed when defining the pectrum requirements in terms of the amount of radio spectrum to be assigned.

PAGE

18/19

Regulators should, for example, ensure that the spectrum already allocated to mobile ervices is used in an efficient way.

Finally, it is important to also take into account the nature of actual market demand justifying the assignment of additional spectrum for wireless broadband communications. It cannot be assumed that more spectrum for wireless broadband is always the right answer to the need for more connectivity. For example, most media ervices are used indoors and it is more efficient to provide indoor coverage by means of fixed broadband combined with WiFi than by mobile networks, even though the ervices may be used on mobile and portable devices, such as smartphones and tablets.

4. Address potential interference issues

Article 9(4)

EC proposal

EBU proposed amendment

4. Without prejudice to paragraph 5, the national competent authorities shall take into account and, where necessary, shall reconcile the following regulatory principles when establishing authorisation conditions and procedures for rights of use for radio spectrum:

a) maximisation of end user interest, including end users' interest in both efficient long-term investment and innovation in wireless networks and ervices and in effective competition;

b) ensuring the most efficient use and effective management of radio spectrum;

c) ensuring predictable and comparable conditions to enable the planning of network investments and services on a multi-territorial basis and the achievement of scale economies;

d)

ensuring

the

necessity

and

proportionality of the conditions imposed, including through an objective assessment of whether it is justified to impose additional conditions which could be in favour of or to the detriment of certain operators;

e) ensuring wide territorial coverage of high-speed wireless broadband networks and a high level of penetration and

4. Without prejudice to paragraph 5, the national competent authorities shall take into account and, where necessary, shall reconcile the following regulatory principles when establishing authorisation conditions and procedures for rights of use for radio spectrum:

a) maximisation of end user interest, including end users' interest in both efficient long-term investment and innovation in wireless networks and ervices and in effective competition;

b) ensuring the most efficient use and effective management of radio spectrum;

c) ensuring predictable and comparable conditions to enable the planning of network investments and services on a multi-territorial basis and the achievement of scale economies;

d)

ensuring

the

necessity

and

proportionality of the conditions imposed, including through an objective assessment of whether it is justified to impose additional conditions which could be in favour of or to the detriment of certain operators;

e) ensuring wide territorial coverage of high-speed wireless broadband networks and a high level of penetration and

PAGE

19/19

consumption of related services.;

consumption of related services.;

(f) preventing any harmful interference, including the possibility to impose obligations to solve cases of interference with other users of the radio spectrum and to cover the costs incurred.

Justification

The Commission proposal fails to adequately address situations where potential interference between different spectrum users may occur. The provisions under Article 9 in particular do not require national competent authorities for radio spectrum to take account of potential interference issues as a regulatory principle when establishing authorisation conditions and procedures for rights of use for radio spectrum.

---------------------

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