This Communications & Media e-bulletin contains summaries of recent developments in law and regulation in the EU and the UK:

  1. Green Light for White Spaces
  2. Blink and you missed it: New Electronic Communications Code withdrawn
  3. Mobile killed the Video Star: Commission seeks views on spectrum use for wireless broadband
  4. One, Two, Three, Four, Five: Ofcom calls for inputs on 5G 
  5. The Big Cover-Up: Mobile operators agree new coverage obligation
  1. ​​Green Light for White Spaces

Ofcom has announced its decision to allow a new wireless technology access to the unused parts of the radio spectrum in the 470 to 790 MHz frequency band, a regulatory and industry first in Europe.

Background

The 470-790 MHz frequency band in the UK (the "UHF TV Band") is currently allocated for use by digital terrestrial television broadcasting such as Freeview, as well as programme making and special events.

Typically "white spaces", or "TV white spaces", consist of unused spectrum in the UHF TV Band. There is unused spectrum mainly because of the geographical separation required between television stations of the same channel. For example, because of interference, you could not have a transmitter broadcasting a channel from London and another transmitter broadcasting the same channel close by. Microsoft is advocating globally for use of the white spaces for license-exempt services (like Wi-Fi). However, it is worth noting that desirable/potential geographic areas, such as major urban and suburban areas, typically have little, if any, TV white space at all. The size of the white spaces, and their precise frequency, also varies from location to location - meaning there is no single white space frequency that can be used around the country.

In order to try and utilise TV white spaces, Ofcom has been looking into the possible opportunistic use of this spectrum for a number of years. It issued its first statement expressing an intention to allow use of the spectrum in 2007 and has since published a number of consultations on the subject, culminating in a series of successful industry trials which took place in the UK last year. The consultations and trials have investigated what spectrum is available within the band and how new uses could coexist with the current uses in the band. Ofcom is now putting in place the foundations for industry to use TV white spaces.

The White Space Framework

White space spectrum in the UHF TV Band is appealing for industry because it can travel longer distances and more easily through walls than the bands mainly used by other wireless technologies, such as Bluetooth and Wi-Fi.

The aim of Ofcom's white space framework is to enable white space devices to use spectrum in the UHF TV band at a particular location and time on a shared basis subject to ensuring that there would be a low probability of harmful interference to other spectrum users.

To enable this, the operation of white space devices will be controlled by white space databases approved by Ofcom. These databases will provide the white space devices with a set of operational parameters, including the frequencies and maximum powers at which the white space device can transmit. Each approved database will be listed in new licence exemption regulations. Ofcom will also enter into contractual arrangements with the database providers and it has confirmed that no charges will be levied on such database providers for the first three years from the introduction of the licence exemption. However, Ofcom is reserving the right to consider charging database providers in the future in order to be able to recover its costs in making white spaces available.

A white space device will be able to download the list of approved databases from the website and select a database with which to exchange information. The white space device will then send certain information to the database, such as its location, before the database is able to send back the parameters within which the white space device may operate.

White space devices will be licence exempt provided that they operate under the control of an Ofcom approved database, and they comply with a set of technical and operational requirements that Ofcom considers necessary to avoid harmful interference. These technical and operational requirements will be set out in a proposed new statutory instrument for licence exemption and an interface requirement document. Devices will need to comply with these requirements in order to benefit from the licence exemption.

However, whilst Ofcom expects most white space devices will operate on a licence exempt basis in the future, it acknowledges that many do not currently meet Ofcom's requirements for licence exemption and require manual configuration by the user. Ofcom is therefore also consulting on whether these manually configured devices should be licensed on a transitional basis, while equipment is developed that meets the licence exemption requirements.

Business Impact

The potential uses of TV white spaces are still being considered by the industry. For example, white space could be used to provide wireless broadband internet access, similar to Wi-Fi but potentially over longer distances, to mobile devices like tablets and phones. It could also be used as an extension of fixed-line broadband to reach places that aren't connected via cable without resorting to line-of-sight technology such as satellite or microwave broadband. The white space spectrum could also be used for connecting devices as part of the "internet of things".

Based on the trials and stakeholder feedback, there is considerable interest from industry in developing this technology. Ofcom believes commercial applications for this white space technology could emerge by the end of the year and it is also exploring how the white space in other spectrum bands could be used for similar innovation in the future.

To view a copy of Ofcom's statement, please click here

  1. Blink and you missed it: New Electronic Communications Code withdrawn

On 22 January 2015, the Government withdrew an amendment to the Infrastructure Bill which it had proposed only nine days previously. The withdrawn amendment comprised a revised version of the Electronic Communications Code.

On 13 January 2014, the Government introduced a revised Electronic Communications Code by means of a 59 page amendment to the Infrastructure Bill, which was progressing through Parliament. The existing code had been criticised for many years as being incoherent and out of date and was famously described by Lewison J in 2010 as "not one of parliament's better drafting efforts….. one of the least coherent and thought-through pieces of legislation on the statute book". The proposed revision of the code was based (at least in part) on the February 2013 recommendations of the Law Commission.

The Government initially intended to rush through the new code so that it could urgently address problems with telecoms infrastructure, such as "not-spots" and patchy areas of coverage. However, this approach was heavily criticised by a number of interested parties. In particular, the Government was criticised for failing to properly respond to the Law Commission's recommendations in the area, failing to consult on its policy plans and failing to detail the full consequences of its proposals.

As a result, nine days after its introduction, the proposed new code was withdrawn. A spokesman for the Department of Culture, Media and Sport said that "further time" was needed to safeguard the interests of the various stakeholders involved. However, it was reiterated that the Government "remains committed" to passing this legislation at the "earliest opportunity".

The existing code is a complex and technical piece of legislation, which has to balance the competing and varied needs of a variety of stakeholders such as telecoms operators, land owners and telecoms customers. It is widely accepted by industry experts that more parliamentary time is required to produce a workable piece of legislation in this area. However, since the withdrawal of the proposed new code there has been no sign of further consultation with industry or progress in bringing a new code into law.

To view a copy of the new Electronic Communications Code as it was proposed, please click here.  

  1. Mobile killed the Video Star: Commission seeks views on spectrum use for wireless broadband

The European Commission (the "Commission") has launched a consultation on how EU Member States should use the 700MHz band of spectrum. The Commission notes that developing a common EU approach to the use of spectrum is a political priority, and will form a key part of the development of the digital single market.

Currently, the 700MHz band is used across the EU for digital terrestrial television as well as wireless audio equipment. The 700MHz wavelength means that waves travel further and penetrate obstacles better. As such, these frequencies are becoming increasingly appropriate to improve the capacity of mobile broadband networks, and their geographical coverage.

The consultation notes that the International Telecommunications Union, the UN body responsible for ICT issues, agreed in 2012 that the 700MHz band could be used for either broadcasting or mobile services in the EU from 2016. As such, the Commission is seeking views from the telecommunications industry and the public on one of two options:

  • The 2020-2030-2025 option: under this option, the 700MHz band would be dedicated to mobile broadband across Europe by 2020; terrestrial broadcasters would be given security over use of the spectrum below 700MHz until 2030; and a review of the situation would take place by 2025
  • The flexibility option: this option proposes downlink-only wireless broadband use of UHF broadcasting spectrum in the 470-694 MHz band, meaning broadcasting use would always have priority, while specific channels or locations not used for terrestrial broadcasting could become available for downlink-only wireless broadband applications depending on national circumstances

The Commission intends to draw up its spectrum strategy during the course of 2015, and needs to develop an EU position for the World Radiocommunication Conference in November 2015, which will discuss international treaties governing the use of spectrum. The consultation closes on 12 April 2015.

The UK/Ofcom Position

Separately to the Commission's consultation, Ofcom announced at the end of last year its decision to repurpose spectrum in the 700MHz band to make it available for mobile data use. The decision follows Ofcom's consultation on the issue in May 2014.

In the UK, the 700MHz band is currently used to deliver DTT and making the band available for mobile data will mean that DTT can no longer use this spectrum. However, Ofcom has confirmed that it intends to ensure that reducing the spectrum available to DTT does not materially affect coverage or channel line-up and that any significant disruption to viewers is avoided.

Ofcom's objective is to make the spectrum available by 2022 and considers it likely that an auction of the available spectrum will be conducted up to two years before the spectrum starts to become available, to try and give mobile network operators certainty as to their future spectrum holdings and enable them to plan network investment more efficiently.

To view a copy of the Commission's Consultation, please click here.  

To view a copy of Ofcom's decision, please click here

  1. One, Two, Three, Four, Five: Ofcom calls for inputs on 5G

On 16 January 2015, Ofcom published a Call for Inputs from stakeholders on the use of spectrum bands above 6GHz (the "Call for Inputs").

The Call for Inputs attempts to look ahead to the nature of 5G mobile services, which Ofcom predicts will provide incredibly fast mobile broadband speeds, and asks stakeholders to consider how high-frequency spectrum may be best-utilised to meet consumers' needs. Ofcom states that it will use responses to the Call for Inputs in order to narrow down and assess the spectrum options above 6GHz for 5G.

While the timeframe and precise nature of 5G technology remains uncertain, Ofcom is eager to carry out some early "groundwork" to understand and accommodate the spectrum requirements of 5G. Ofcom anticipates that 5G will benefit from utilising the high-frequency spectrum above 6GHz, given this is expected to support the high-speed demands of the technology. Higher-frequency spectrum (between 6 and 100 GHz) is currently utilised, for the most part, for satellite services, space science and military uses, and fixed links. The Call for Inputs anticipates that one of Ofcom's challenges will be how to allocate spectrum in this frequency between its traditional uses and new, commercial purposes.

Ofcom's analysis will be carried out in conjunction with equivalent organisations on an international scale, but Ofcom's Chief Executive hopes for the UK "to be a leader in the next generation of wireless communications". In describing the international reach of the technology, the Call for Inputs contains a useful summary of 5G developments across the globe, which indicates that the technology may be ready for commercial use by 2020.

Following the Call for Inputs, Ofcom intends to publish a summary of responses in the second quarter of 2015.

To view a copy of the Call for Inputs, please click here

  1. The Big Cover-Up: Mobile operators agree new coverage obligation

Ofcom has made variations to the mobile spectrum licences held by EE, O2, Three and Vodafone to include a new 90% coverage obligation, reflecting an agreement made between the Government and the mobile operators back in December 2014.

In November 2014, the Department for Culture, Media and Sport consulted on legislative solutions to address poor signal issues in so-called 'partial not-spots' where some, but not all, mobile operators provide signal coverage. The Government has now moved away from any such mandatory legislative solution, believing instead that a voluntary binding agreement made with the mobile operators in December 2014 secures a better deal for consumers and businesses.

Under the agreement, all four mobile operators committed to:

  • a guaranteed £5 billion investment programme to improve mobile infrastructure by 2017; and
  • guaranteed voice and text coverage from all mobile operators across 90% of the UK, by 2017.

Ofcom has now varied the relevant licences to reflect the second limb of this agreement by including a new condition in the licences providing that the licensee shall by no later than 31 December 2017 provide and thereafter maintain an electronic communications network that is capable of providing mobile voice telecommunications services to an area covering at least 90% of the geographic landmass of the United Kingdom. Ofcom will assess the Licensee’s compliance with this coverage obligation by reference to the document “Voice Coverage Obligation Notice of Compliance Methodology” published by Ofcom (and available here).

As consideration for the agreement from the mobile operators, the Government in turn agreed to:

  • bring the arrangement to the attention of Ofcom in the context of Ofcom's work to revise Annual Licence Fees – this is the subscription fee mobile networks pay Government which Ofcom is obliged to review following the 2010 Direction to Ofcom given by the Government;
  • reform the out-dated and ineffective Electronic Communications Code to make it easier for the whole communications sector to rollout out new mobile and broadband services, and increase choice for consumers (see also article above regarding the recent proposal and withdrawal of a new Electronic Communication Code by Government); and
  • allow many of the Government’s freehold buildings to be used as sites for mobile infrastructure – potentially opening up hundreds of sites to boost mobile coverage, including areas where is has been previously difficult to rollout network coverage.

To view a copy of the Ofcom press release, please click here.