1. Mobile spectrum and TV: living together in perfect harmony?

A High Level Group on future use of the UHF band (470-790 MHz) has reported back to the European Commission. After the group failed to reach agreement, the chairman has taken responsibility for a proposal to re-allocate the spectrum band to mobile services by 2020.

Background

In 2012, the International Telecommunication Union World Radiocommunications Conference allocated the valuable spectrum resource of 694-790 MHz (the "700 MHz band") to mobile services alongside the previous exclusive allocation to the terrestrial broadcasting service in Europe with effect in 2015. In all other world regions the 700 MHz band is already allocated on a co-primary basis to, and increasingly used for, mobile services.

The 700 MHz band therefore represents an opportunity for globally harmonised spectrum for mobile broadband offering economies of scale and roaming with any next generation mobile technology (LTE2 and beyond). However, terrestrial broadcasting services are currently using the 700 MHz band in the EU. For conventional mobile networks to have access to this band, terrestrial broadcasting networks would have to clear it because both types of networks cannot coexist in the same frequency band with today's technology.

The High Level Group ("HLG") on the future use of the UHF band was therefore convened at the end of 2013, comprising 19 executive-level representatives from the mobile and broadcasting sectors. Its objective was to deliver strategic advice to the European Commission for the development of a European strategy on the future use of the UHF band.

This type of strategy is required in Europe because different allocations of spectrum bands among neighbouring countries can lead to interference along borders and can even increase the cost of building mobile devices (as these devices have to adapt to the requirements of different bands). Several European Member States (e.g. Finland, Germany, and Sweden) have already stated they will use the 700 MHz band for mobile broadband. If this is not done in a structured way, it could lead to fragmentation in Europe.

The Compromise Proposal

The HLG was unable to agree on two key issues:

  • flexibility around the target date for re-allocation of the 700 MHz band for mobile services in the EU; and
  • duration of the period during which the 470-694 MHz part of the UHF band should remain allocated exclusively to broadcasting in the EU by virtue of the ITU Radio Regulations.

However, the scope of consensus among the group enabled the chairman of the HLG to prepare the report and propose a recommendation under his sole responsibility.

The chairman's recommendation centred around his so-called "20-25-30" model. This model means:

  • the 700 MHz band would be allocated to mobile broadband by more or less 2020 (give or take two years);
  • regulatory security and stability for terrestrial broadcasters in the remaining UHF band spectrum below 700 MHz would be ensured until 2030; but
  • future developments would be informed by a review undertaken by 2025.

Although the recommendation is not fully backed by an explicit agreement of the HLG, it is not the only committee looking into the issue. The European Commission is still expecting Member States to deliver a report on this issue by the end of the year (the Radio Spectrum Policy Group Opinion on the UHF band).

In the UK, Ofcom has also published a consultation on the future use of the 700 MHz Band. In its consultation document, Ofcom proposed to make the 700 MHz band available for mobile broadband as soon as possible, subject to discussions with Government regarding the costs of the changes, and to Ofcom being able to reach necessary international spectrum planning agreements.

Business Impact

The HLG report and Ofcom consultation will be welcome news for mobile operators having to cope with huge increases in demand for mobile data services. However, it is unlikely to be as popular with terrestrial broadcasters who may soon need to face the task of reconfiguring the DTT network in the spectrum between 470–694 MHz. According to Ofcom, in the UK this could be done without materially affecting the coverage or channel mix that viewers currently enjoy and would not require another TV switchover (like the switch from analogue to digital TV). However, there is no clarity as yet regarding who would be required to foot the bill for the infrastructure costs that such a transition would likely entail.

In addition, and in light of the European Commission's "Connected Continent" Regulation proposals for : (i) a single EU notification and authorisation regime for telecommunications operators; and (ii) the coordination of spectrum allocation, this type of spectrum harmonisation could represent measures to bring Europe one step closer to pan-European licensing in the telecoms sector.

To view a copy of the HLG report, please click here.

2. Retain fundamental rights: Working Party view on data retention

On 1 August 2014, the Article 29 Working Party ("WP29") adopted a statement in which it welcomed the findings of the Court of Justice of the European Union ("CJEU") in the case of Digital Rights Ireland, where it was held that the Data Retention Directive was invalid.

In the Digital Rights Ireland case, the CJEU held that the Data Retention Directive 2006/24/EC (the "Directive") was invalid on the grounds that it was incompatible with the Charter of Fundamental Rights. In particular, the CJEU found that by requiring the retention of communications data and by allowing the competent national authorities to access those data, the Directive interfered in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.

The WP29 has encouraged Member States to "draw the consequences" from the ruling of the CJEU and has welcomed the CJEU's findings that the Directive seriously undermines the fundamental right to privacy and fails to protect personal data. The WP29 also supports the view of the CJEU that interference in such fundamental rights should only occur if strictly necessary.

The WP29 urges Member States to check the compliance of their national legislation with the remaining EU legislation. Specifically, Member States should ensure that there is no bulk retention of personal data, but rather retention should only occur when strictly necessary, as determined by precise and objective criteria.

In the UK, the Government has already passed emergency legislation in the form of the Data Retention and Investigatory Powers Act 2014 to ensure that communications service providers continue to retain communications data. Although the reports of the WP29 are non-binding on the European Commission or Member States, it will be interesting to see whether the Commission investigates the recently adopted UK Act to ensure that it is compatible with the EU legislation on data retention, as it now stands.

For a copy of the WP29's statement, please click here.

3. Planning for plurality: UK Government publishes plurality proposals

On 6 August 2014, the UK Department for Culture Media and Sport published the Government's response to a July 2013 consultation on media ownership and plurality and to the House of Lords Select Committee report into media plurality.

The issue of media plurality, and its regulation, has been under scrutiny in the UK since 2011. Firstly, in the context of the News Corp/BSkyB proposed merger, and then again as part of Lord Justice Leveson's inquiry into the culture, practice and ethics of the press.

In its recently published report, the Government offers the following conclusions regarding the measurement of media plurality in the UK:

  • The scope of any new plurality measurement framework should include "online";
  • The type of content most relevant to media plurality is news and current affairs and the scope of any measurement framework should therefore be limited as such;
  • All parts of the news value chain (from collection to dissemination and aggregation) should be included in any assessment;
  • The impact of the BBC should be assessed; and
  • The first baseline assessment of plurality should include some consideration of local and regional markets.

The Government will now look to commission Ofcom to develop a suitable set of indicators to inform the measurement framework for media plurality. These indicators will subsequently allow for the first ever baseline market assessment of media plurality in the UK to be conducted.

For a copy of the Government's report, please click here.

4. Superfast Broadband Super Strategy

The Government has published a consultation on digital infrastructure, highlighting the importance of digital communications in a modern economy and confirming that the scale of importance of this sector makes the infrastructure that underpins it a matter for public policy.

In July 2013, the Department for Culture, Media and Sport published a report on Connectivity, Content and Consumers, which specifically identified a need to develop a longer term digital communications infrastructure strategy (the "Strategy").

The DCMS has now published a consultation paper in conjunction with HM Treasury (the "Consultation") to gather information and views on the development of this Strategy. The paper doesn't propose a draft strategy or specific points for future action but rather requests submissions on a number of issues, including:

  • the role of the Government in relation to the Strategy going forward;
  • how user demand for infrastructure is expected to evolve over the next 15 years;
  • regulatory factors and implications; and
  • the scale of private investment required and timescales.

In terms of regulatory issues, the Consultation briefly examines the application of competition law and Ofcom's market review work to encourage investment in superfast and mobile broadband. The Consultation then seeks views on:

  • how changes in the regulatory framework might be used to incentivise investment;
  • how the threat of a digital divide can be avoided and the role of Universal Service Obligations in supporting this aim; and
  • how the regulatory framework can keep up to date with technological change and new business models.

Responses to the Consultation are invited by 1 October 2014.

Although the nature of the consultation is very high level, the act of consulting in itself represents another strand in a growing web of political and legislative activity in relation to digital infrastructure. In particular, it shows a growing trend towards examination of the role of public sector and existing infrastructure when considering future strategy.

At the EU level, the European Commission's Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks implements a number of measures to reduce cost barriers to invest in rolling out high-speed broadband infrastructure, with a particular focus on civil infrastructure works and use of existing infrastructure. In the UK, the Government confirmed in its July 2013 "Connectivity, Content and Consumers: Britain's digital platform for growth" report, its plans to amend the Electronic Communications Code to allow easier deployment of broadband infrastructure. In addition, the Consultation itself makes reference to other communications networks (including public sector networks) in use in the UK, showing that the Government is becoming much more holistic in its approach to digital infrastructure planning.

For a copy of the Consultation, please click here.