PART V: LEARNING TO DEAL WITH DEMANDS FOR PARTICIPATION
VII. CONVERGENCE OF BROADCASTING AND TELECOMMUNICATIONS
Currently,the telecoms and broadcasting sectors are converging. A digital
‘‘convergence’’is occurring between electronic media,telecoms,and com- puting,making it difficult to maintain separate regulatory structures for these hitherto distinct sectors (Commission of the European Communities,1997).
This‘‘convergence’’produces pressures for more flexible regulation,partic- ularly with regard to broadcasting,which,unlike computing and even tele- coms,has historically been subject to very strict regulation. Some argue that digital convergence undermines both the rationale for,and the feasibility of, sector-specific national regulation of communication. (Why continue to regulate broadcasting,when the Internet,which can deliver TV programs, remains free from such regulation? Why continue to regulate broadcasting to provide diversity when consumers can choose from scores of digital thematic
channels?) The stakes of getting the new regulatory structures right are high because the‘‘communications sector’’is seen as being of strategic importance for European competitiveness in the global economy,something famously stated by Jacques Delors’ 1993 paper on Growth, Competitiveness and Employment(Commission of the European Communities,1993) and echoed by the 1994 ‘‘Bangemann Report’’on Europe and the Global Information Society(Commission of the European Communities,1994). The reform of regulatory policy for the‘‘converging’’communications sectors testifies to a degree of Commission-mediated policy transfer,starting off as voluntary transfer through open discussion of the issues and alternative models in consultations surrounding the publication of a 1997 Green Paper on conver- gence,then the 1999 Communications Review and some draft directives,but finally taking the shape of negotiated obligated transfer through the enact- ment in early 2002 of five directives (to be transposed by member states by mid-2003) simplifying the regulation of all electronic communications net- works and services,albeit with an exemption for broadcast content,which could remain bound by diverse national rules,subject to the internal market requirements of the TWF Directive.
The European Commission’s original regulatory policy agenda for convergence was biased by a clear transfer of ideas from industry experts and interests to policy makers,at the expense of other concerns such as cultural policy. Notably influential in informing the Commission’s 1997 Green Paper on convergence,which placed the issue of regulatory reform for the converging sectors squarely on the agenda,was a 1996 report that the commission had commissioned from the British consultancy KPMG (1996).
According to Tongue (1998,p. 2),who was a member of the EP’s culture committee at the time and a well-informed participant in the debate,
‘‘. . .although the Green Paper was finally submitted by the European Commission’s DG XIII (Industry and Telecoms) and DG X (Culture and Media),it was largely the work of [the telecommunications directorate] DG XIII together with [industry] consultants KPMG. The initiative was headed by Commissioner Bangemann,whose main brief [was] to create a liberalized environment for industry.’’Levy (1999,p. 130) notes the‘‘intense political battle’’that occurred between these two directorates,and that the final draft
‘‘was far less prescriptive and more open-ended than the original DG XIII draft.’’However,in the most important section of the Green Paper,present- ing three options for the future of regulation—building incrementally on present national structures,developing a separate regulatory model for new converged services,and moving toward a converged‘‘horizontal’’regulatory model for the entire communications sector—Levy (1999,p. 132) detects‘‘a clear preference’’for the latter. Close analysis of the Green Paper arguably reveals a bias toward the view that convergence requires a slimmed-down,
converged regulatory framework calculated to promote the economic benefits of convergence and conducive to Europe’s global competitiveness (Hum- phreys,1999b).
However,the commission’s ambition to steer through a major new liberal European regulatory model to be applied horizontally across the
‘‘converging’’ communications sectors abutted against the reluctance of national governments and broadcasters to cede control over the politically and culturally sensitive,domestically rooted broadcasting sector. The extent of resistance to the commission’s clearly favored model of across-the-board
‘‘horizontal’’ regulation became clear from the consultation process sur- rounding the 1997 Green Paper on convergence and the subsequent commis- sion-inaugurated 1999 Communications Review. Ward (2002,pp. 111–124) has described in detail how the commission was compelled to water down its original aims. As the result,content regulation was excluded from the new
‘‘horizontal’’regulatory model for communications infrastructure and ser- vices,which was produced by the commission in 2000 and adopted by the Council of Ministers in a series of directives during 2002. The new 2003 regulatory package broadens the scope of the EU regulatory framework to all electronic communication networks and services. It replaces the 1998 tele- coms regulatory package’s numerous liberalization directives for different telecoms networks and services with a single liberalization directive and replaces its various harmonization directives with five council and EP directives (for a common regulatory framework,access and interconnection, authorization,universal service,and data protection and privacy). Broad- casting content,it was conceded,could continue to be regulated‘‘vertically’’
according to member states’ preferred sociocultural models. The Framework Directive on a common regulatory framework for electronic communications networks and services recognized that: ‘‘audiovisual policy and content regulation are undertaken in pursuit of general interest objectives,such as freedom of expression,media pluralism,impartiality,cultural and linguistic diversity,social inclusion,consumer protection,and the protection of minors’’(European Parliament and Council,2002,pp. 5–6). This means that broadcasters can remain subject to strict content obligations. Thus,whereas the UK’s 2002 Communications Bill,in line with the new EU regulatory framework,abolishes the current requirement to obtain individual licenses to run telecoms systems,it continues to regard broadcasting as a licensed sector,with the terrestrial ‘‘public service’’ broadcasters continuing to be subject to a higher level of regulation than channels carried by cable,satel- lite,and other telecoms systems (Humphreys,2003a,p. 192). Furthermore, the Universal Services Directive,in the new EU communications regulation package,allows member states to impose‘‘reasonable ‘must-carry’ obliga- tions’’ for the transmission of public service channels (the term used is
services that meet‘‘general interest’’objectives) on providers of electronic communication networks used for the distribution of radio or television broadcasts (Article 31).
The‘‘convergence’’regulatory framework leaves scope for considerable national diversity. Despite the similarity of the reform agenda across the EU, despite the Commission’s efforts to promote its preferred model,and despite the strong pressures of (de)regulatory competition between member states, digital convergence did not produce similar policies nor erode the traditional policy styles of countries such as France,Germany,and the UK. As Levy (1999) has described,French economicdirigismeand cultural protectionism, and Germany’s federalism and special concern for pluralism,constrained broadcasting reform and complicated discussions about regulatory adapta- tion to the challenges presented by convergence. Consequently,in Germany, regulatory reform seemed to be guided as much by the constitutional issue of which new media services fell under the regulatory jurisdiction of the federation and which under that of theLa¨nder,with new media laws produced at each level. In France,the regulatory policy debate was about how to reconcile protectionism with a more competitive market. In the UK,policy was geared toward a stricter regulation of digital TV than elsewhere (see below). Moreover,of the three cases,so far,only the UK has opted for a converged regulator,as suggested by the EC’s 1997 Green Paper on conver- gence,for the entire electronic communications sector (OFCOM).
There is one area of convergence where a significant element of policy transfer might have been expected between sectors: namely,the regulation of conditional access. Conditional access systems (CAS) ensure,typically by encryption and subscriber management systems,that only those consumers who have paid for a program or information service are able to receive it. CAS have been described as the ‘‘turnstiles’’ of digital broadcasting and they clearly raise issues (common standards,interconnection and interoperability, and fair and nondiscriminatory access) that are‘‘familiar from telecommu- nications’’(Levy,1999,p. 63). Given the successful transfer across Europe of a regulatory framework for precisely these issues in telecoms,and in view of the indispensability of resolving interoperability and interconnection issues for creating a European single market for digital TV,the EU’s failure to prevent the appearance of a fragmented scenario of proprietary conditional access systems,regulated according to diverse national models,across the member states testified to the capture of regulatory policy making by those national pay-TV operators who owned the digital‘‘turnstile’’(Levy,1999, pp. 63–79). Only in the UK,where Rupert Murdoch’s control of the digital
‘‘turnstile’’gave the matter a certain political salience,were detailed guide- lines allowing implementation of the fair access that had been loosely specified by EU Directive9quickly developed for CAS regulation by Oftel,the UK
telecoms regulator. Some policy learning did duly occur,though; the UK
‘‘telecoms’’ model informed guidelines produced by the German private
broadcasting regulators,who were responsible for CAS regulation in that country.
VIII. COMPETITION POLICY IN THE CONVERGING