UK: CMS Quarterly Communications Update - October 2012

Last Updated: 8 November 2012
Article by Joanne Wheeler, Bailey Ingram and Hannah Suthren

Quarterly update summarising regulatory and legal developments from the last three months in the communications, media and satellite sectors in Europe.

This edition includes contributions from the United Kingdom, the Czech Republic, France, Hungary, Italy, Slovakia and Spain.

To view the article in full, please see below:


Full Article

Quarterly update summarising regulatory and legal developments from the last three months in the communications, media and satellite sectors in Europe.

This edition includes contributions from the United Kingdom, the Czech Republic, France, Hungary, Italy, Slovakia and Spain.

UNITED KINGDOM

COMMUNICATIONS

Ofcom statement on the auction of spectrum in the 800 MHz and 2.6 GHz bands

On 24 July 2012, Ofcom published a statement and draft auction regulations following a series of consultations on this issue. The statement sets out Ofcom's decisions for the auction of wireless telegraphy licences for the use of 790 MHz to 862 MHz spectrum (800 MHz band) and 2500 MHz to 2690 MHz spectrum (2.6 GHz band).

The statement contains Ofcom's assessment of likely future competition in markets for the provision of mobile electronic communication services after the conclusion of the auction of the 800 MHz and 2.6 GHz bands. It outlines the measures that will be taken to promote competition following the auction, including auction rules. These measures are designed to ensure that there are four credible national wholesalers, each with access to sufficient spectrum to compete. Spectrum will be reserved for a bidder other than Everything Everywhere, Telefónica and Vodafone. In the statement, Ofcom identify the reserve prices for each lot of spectrum to be auctioned. Coverage obligations will be contained in one of the 800 MHz licences, intended to promote the widespread availability of next generation mobile broadband services. Ofcom's decision also sets out the technical and non-technical licence conditions, which include a set of conditions designed to ensure that mobile use of the 800 MHz band can co-exist with neighbouring digital terrestrial television use.

Ofcom are planning to hold a number of events that will allow interested parties to familiarise themselves with the auction design and procedures. These are likely to include a seminar to explain the auction rules. Ofcom will also hold mock auctions for those interested in taking part in the auction.

On 2 October 2012, Ofcom announced that the auction process is on schedule; bidding for licences is expected to begin in early 2013.

For more information please go to: http://stakeholders.ofcom.org.uk/binaries/consultations/award-800mhz/statement/statement.pdf

Ofcom decision to vary Everything Everywhere's 1800 MHz spectrum licences

On 21 August 2012, Ofcom announced their decision to grant Everything Everywhere variations to its existing 1800 MHz licences to enable it to provide services using LTE and WiMax technologies in those frequencies. Everything Everywhere will be the only operator capable of launching its own LTE services prior to the auction of the 800 MHz and 2.6 MHz bands in 2013 (see above). In Ofcom's view, there is potential for material consumer benefits in the form of better quality data services available to Everything Everywhere's customers. Ofcom consider that the competitive advantage that Everything Everywhere may enjoy is unlikely to result in an enduring advantage that distorts competition.

The variation of the licences came into force on 11 September 2012.

For more information please go to: http://stakeholders.ofcom.org.uk/consultations/variation-1800mhz-lte-wimax/statement

Ofcom close investigation into Everything Everywhere's compliance with General Condition 23

On 22 October 2012, Ofcom announced that they have closed their investigation into Everything Everywhere's compliance with General Condition 23 without further enforcement action. General Condition 23 prescribes a number of obligations in relation to the sale and marketing of mobile telephony services. Ofcom's investigation examined compliance by Everything Everywhere, trading as Orange, and its resellers. Ofcom identified areas of weakness in compliance and have accepted written assurances from Orange in relation to specific improvements that the mobile operator intends to make.

For more information, please go to: http://stakeholders.ofcom.org.uk/enforcement/competition-bulletins/closed-cases/all-closed-cases/cw_01074/?utm_source=updates&utm_medium=email&utm_campaign=cw_01074

Ofcom decision on alternative dispute resolution schemes

The Communications Act 2003 places a duty on Ofcom to secure the availability of Alternative Dispute Resolution schemes for domestic and small business customers. In accordance with General Condition 14.5, all communications providers are required to participate in an approved Alternative Dispute Resolution scheme. In a consultation document published in May 2012, Ofcom set out their view that some aspects of the schemes were leading to inconsistent outcomes for consumers, contrary to the requirements of the 2003 Act. In particular, these were due to discrepancies between the two available schemes: Ombudsman Services Communications (OS) and Communication and Internet Services Adjudication Schemes (CISAS).

Ofcom have decided to address this issue by modifying the conditions for their approval of the schemes. This involves the introduction of a new condition of approval, which requires that the Schemes adopt a common set of 'Decision Making Principles', including the development by each of guidelines on awarding compensation.

For more information please go to: http://stakeholders.ofcom.org.uk/binaries/consultations/adr-review-12/statement/statement.pdf

Regulatory financial reporting: a review

The current framework for BT's regulatory financial reporting dates from 2004. Since then, both technology and the use of financial data have evolved significantly. In particular, there has been increased focus on detailed costing data for the development and scrutiny of charge controls and in resolving disputes. There is dissatisfaction on all sides with the current regime: communication providers' confidence in the published financial statements has gradually been eroded; BT considers that it is required to publish unnecessary levels of detail; and Ofcom find that they need to make material adjustments to reported information in order to make regulatory decisions. Following publication of BT's most recent financial statements for 2012, on 31 July Ofcom's proposals for a review were set out. Stakeholders' views and suggestions as to how to make regulatory financial reporting better for the future are sought.

Responses to this consultation are requested by 2 November 2012.

For more information please go to: http://stakeholders.ofcom.org.uk/consultations/regulatory-financial-reporting/summary

Ofcom decision on next-generation text relay services

On 17 October 2012, Ofcom published a review on relay services. All fixed and mobile communications providers are required under General Condition 15 to provide access for customers to a text relay service, designed for hearing-impaired and speech-impaired users. In practice, communications providers have met this obligation by connecting to the text relay platform operated by BT. Prior to the publication of Ofcom's statement on next-generation text relay services, BT was required by Universal Service Condition 4 to provide text relay services to other communications providers on fair, reasonable and non-discriminatory terms. Ofcom revoked Universal Service Condition 4 on 17 October with immediate effect. Ofcom have amended General Condition 15 with the effect that communications providers are obliged to provide next-generation text relay services by 18 April 2014. These obligations are intended to ensure implementation of two-way text and two-way speech with live text, using voice and data connections simultaneously. Ofcom have decided against introducing video-relay obligations at this time.

The full statement, including the amended text of General Condition 15 can be found here: http://stakeholders.ofcom.org.uk/binaries/consultations/relay-services-review-12/statement/statement.pdf

Ofcom consultation on cost modelling for the Narrowband Market Review Network Charge Control

Ofcom have published a consultation on their approach to cost modelling in the event that they continue to impose a Network Charge Control on BT as a consequence of the Narrowband Market Review. Ofcom propose to depart from their current approach in two respects. First, taking account of the European Commission's 2009 'Recommendation on the regulatory treatment of fixed and mobile termination rates in the EU', Ofcom propose to base any charge control on forward-looking long-run incremental costs. Second, Ofcom propose to base their cost model on next-generation network technology rather than the time-division multiplexing technology currently used by BT. In Ofcom's view, next-generation network technology can now reasonably be considered as the most efficient available technology that performs the same function as the current technology.

Responses to the consultation are requested by 9 November 2012.

For the consultation document, please go to: http://stakeholders.ofcom.org.uk/binaries/consultations/narrow-band-market-review/summary/condoc.pdf

Ofcom's provisional conclusions in a dispute regarding BT's Standard Interconnect Agreement

On 1 October 2012, Ofcom published their provisional conclusions in a dispute between BT and each of Everything Everywhere, H3G and Telefónica. BT's Standard Interconnect Agreement governs telephony services provided by both BT and the other operators party to the agreement. The mobile network operators submitted a dispute to Ofcom concerning clauses relating to charges. The relevant provisions permit BT to amend charges unilaterally while other operators require prior agreement from BT to amend their charges. Ofcom have provisionally concluded that, while asymmetrical, the provisions are fair and reasonable. Ofcom consider that there are benefits of stability in the current regime, as BT is a significant transit provider and acts as a gateway to price fluctuations from other operators. Further any potential detriments under the regime, such as BT's ability to introduce unilateral price changes without commercial consultation, are in Ofcom's view constrained by regulation, which enables operators to submit a dispute over prices to Ofcom for resolution.

Ofcom expect to issue a final determination at the end of November 2012.

For more information about the dispute please go to: http://stakeholders.ofcom.org.uk/enforcement/competition-bulletins/open-cases/all-open-cases/cw_01083/?utm_source=updates&utm_medium=email&utm_campaign=cw_01083

The Joint Select Committee's enquiry into the Draft Communications Data Bill

The Joint Committee on the draft Communications Data Bill, chaired by Lord Blencathra, is currently conducting pre-legislative scrutiny into the draft Bill and the policies it seeks to implement. The Joint Committee comprises six MPs and six Peers. It will take oral and written evidence and make recommendations in a report to both Houses. The Joint Committee invites interested organisations and individuals to submit written evidence as part of the inquiry.

The Joint Committee issued a public call for evidence by 23 August 2012 and are currently hearing oral evidence on the subjects of: costs and scope of the bill; use of communications data; safeguards; parliamentary oversight; enforcement and technical issues and requirements.

For more information about the dispute please go to: http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-communications-bill/news/call-for-evidence/

MEDIA

Advice to the Secretary of State on the acquisition by Global Radio of GMG Radio Holdings

On 24 June 2012 Global Radio Limited acquired the entire issued share capital of GMG Radio Holdings Limited. The Secretary of State for Culture, Media and Sport issued an intervention notice on 2 August 2012 under the Enterprise Act 2002. The notice requested that Ofcom report on the public interest consideration raised by the merger of plurality of media control. It also referred the merger to the Office of Fair Trading for examination on competition grounds. On 28 September 2012, after an initial investigation, Ofcom reported that there was no need for a full investigation into the acquisition in relation to media plurality concerns. Ofcom found that the merger has a limited effect on the number of sources of UK-wide, regional and local news; consequently, Ofcom do not expect that it will operate against the public interest. The OFT, however, referred the matter to the Competition Commission for full investigation. The OFT examined the potential impact on the radio advertisement market and found that the loss of competition between the parties to the merger in a number of regional and local areas gave rise to concerns that the merger could result in increased prices for radio advertisers.

For more information please go to: http://stakeholders.ofcom.org.uk/binaries/consultations/gmg-radio-holdings/annexes/final.pdf and http://www.oft.gov.uk/news-and-updates/press/2012/90-12

Ofcom decision to renew BBC Free-to-View Limited's Multiplex B Licence

Ofcom issued a statement on 24 September 2012 confirming their decision to renew BBC Free-to-View Limited's Multiplex B Licence (the Mux B Licence). The Mux B Licence was awarded to BBC Free-to-View Limited in 2002 under the Broadcasting Act 1996 for the operation of digital terrestrial television. The Mux B Licence expires in November 2014 and BBC Free-to-View Limited applied for a renewal. Ofcom have decided that it is appropriate for them to renew the Mux B Licence for a further 12 years without requiring any additional obligations in respect of either coverage or promotion of digital terrestrial television equipment. As Ofcom have stated their intention to introduce administered incentive pricing (AIP) for spectrum used for broadcasting in 2014, there will be no obligation for BBC Free-to-View Limited to pay a percentage of their multiplex revenue under the renewed licence.

For the full statement, please go to: http://stakeholders.ofcom.org.uk/binaries/consultations/mux-b/statement/statement.pdf

SATELLITE

Ofcom's decision to make Wireless Telegraphy Trading and Register Regulations

On 5 September 2012 Ofcom released a statement confirming that they have made two sets of regulations which extend the ability to transfer Wireless Telegraphy Act 2006 (WT Act) spectrum licence products in the maritime and satellite sectors as well as removing the need to secure Ofcom's consent to a transfer of rights to use spectrum in most instances.

There are two elements to the new Regulations. First, the 'Trading Regulations' extend the ability to transfer all or part of the rights to use spectrum under a WT Act licence to the maritime and satellite earth station licence classes. The changes allow licensees the flexibility to transfer unused or underused elements of their spectrum holdings to a third party who could make use of it. However, this does not permit the new licensee who has been transferred the rights and obligations of the licence to use spectrum for an alternative purpose. The new licensee will still be bound to the terms, conditions and restrictions of the original licence.

Second, the 'Register Regulations' extend the ability for Ofcom to publish certain information necessary to support the transfer process and provide information to the market to the newly transferable licence products.

Ofcom's decision may bear several advantages. Not only it does not impose any additional burden on the licensees but it also simplifies the procedures; the removal of the need for Ofcom to consent to a trade is likely to reduce the time and resources necessary to complete a transaction. Finally, the Trade and Register Regulations revoke and replace multiple legislative provisions by two sets of consolidated regulations which will make easier for stakeholders to find the relevant information about licence transfers.

For more information please go to: http://stakeholders.ofcom.org.uk/consultations/wireless-telegraphy-trading/statement/

Size and health of the UK space industry

On 12 October 2012 the UK Space Agency published its latest report on the "Size and Health of the UK Space Industry" which reveals that the sector continues to grow despite difficult economic circumstances. 234 companies which are actively involved in the UK space industry were invited to take part in a survey update from the last survey published in 2010. Altogether, the companies recorded a total space-related turnover of over £9.1 billion in 2010-2011 and made a significant value-added contribution to UK GDP of £4.2 billion. This represents a real (adjusted for inflation) growth of 6.5% within the study period, 2009/2010 and 2010/2011, and of 15.6% since 2008/2009.

The outlook for the UK space industry beyond 2012 is extremely positive in terms of turnover, employment and generation of activity in the rest of the UK economy.

http://www.bis.gov.uk/ukspaceagency/news-and-events/2012/Oct/uk-space-agency-issues-size-andhealth-of-the-uk-space-sector?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ukspaceagency-news+%28UK+Space+Agency+News%29

CZECH REPUBLIC

COMMUNICATIONS

Amendment to the Act on Electronic Communications

The Amendment to the Act on Electronic Communications came into force on 1 October 2012. The amendment responds to the recent repeal of Sections 2 and 3 of the Act by the Constitutional Court. These sections governed retention of data regarding communication with mobile operators. However, according to the court the provisions were therefore vaguely worded and lacked sufficiently safe rules for securing of stored data. Such provisions were thus unable to ensure sufficient protection of personal data by data storage and by transfer of data to authorised entities. More precisely, it had not been entirely clear so far which entities were deemed to be authorised entities.

The repealed provisions of the Act were criticised for their absence of a list of authorities authorised to request operational and localisation data as well as of the purpose for which such data may be required. The Act failed to determine clear and detailed rules for data storage security, as well as failing to define responsibility and possible sanctions for failure to meet the obligations stipulated by the Act.

In response to the opinion of the Constitutional Court, the amendment contains a list of authorised entities, namely the Czech Republic Police, Prosecuting Attorney's Office, Security Information Service (BIS), Military Intelligence Service and Czech National Bank. The said entities are authorised to request information from mobile operators and mobile operators are obliged to provide such information to those entities free of charge.

The obligation to store data about communications of clients has been imposed on mobile operators for a period of six months (retention period). Operators will not be authorised to store and provide the content of their clients' communications. Only data about the call duration, location from which the call has been made, recipient of the call and/or IP address may be stored.

Details concerning the scope of stored operational data, the localisation of the data, the form and manner of transferring such data from an operator to authorised entities and the method of liquidation of operational and localisation data, are set out by an implementing decree.

Amendment to the Act on Postal Services

Amendment to Act No. 29/2000 Coll., on Postal Services (Act on Postal Services) is aimed at liberalisation of the postal market through the legislative process. From 1 January 2013 private postal service providers shall be allowed to enter into the basic postal services market. Such liberalisation should ensure healthy competition and quality of postal services in the Czech Republic. However, the Act on Postal Services is criticised for guaranteeing (the postal license ) to Česká poata, s. p. for additional five years, i.e. until the end of 2017. A call for tender will then be announced for the next period. The most controversial part of the Act appears to be the provision concerning the financing of the so-called Universal Service. Following liberalisation, Universal Service is to be provided under the law for the first five years by the Czech Post. A Universal Service compensation fund will be established to collect contributions from postal service providers that have a turnover in excess of CZK 10 million per annum. However, contributions will also be collected from postal service providers on whom an obligation of Universal Service has been imposed, regardless of their profits from operations or their market shares. Any losses incurred by the provision of Universal Service will be covered by the compensation fund.

MEDIA

Volume of commercials to be regulated – Draft Amendment to the Act on Radio and Television Broadcasting

The Chamber of Deputies will discuss the draft amendment to Act No. 231/2001 Coll., on Radio and Television Broadcasting Operation and the Amendment to Other Acts, regarding the volume of commercial advertisements. The Act aims to regulate the volume of commercials, to achieve the same level of volume as the rest of the broadcasters. According to the draft, compliance with the Regulation would be supervised by the Radio and Television Broadcasting Council, who would be responsible for implementing the regulation, dealing with technical matters and administering any bans. In its statement, the government expressed its opinion on the draft amendment to the Act, pointing out the fact that the submitted draft, contrary to constitutional requirements, does not determine particular issues that are to be regulated by a decree.

First penalty for "product placement"

The Radio and Television Broadcasting Council awarded the first penalty for the so-called "product placement" after two years since Act No. 132/2010 Coll. came into force. On-demand audiovisual media services, which permits "product placement" (i.e. a product is featured within a programme unit in return for payment/consideration) under certain conditions was the subject of the penalty.

The Act declares that in cases in which the "product placement" meets statutory requirements, it cannot be deemed to be a hidden advertisement, or more precisely the so-called hidden audiovisual commercial communication.

The first penalty amounted of CZK 250,000. It was awarded for a food supplement which was unduly emphasised both verbally and visually. According to the Council's opinion, the presentation resembled an advertisement and the intensity of communication thus exceeded the statutory level. The Act prohibits referring to, or the display of a product in a manner which would directly encourage the purchase or rental of such product. Making special promotional references to a placed product is also prohibited.

SATELLITE

CTO inspecting deceptive business practices

Service fees were recently introduced by satellite television service providers operating in the Czech Republic. The Czech Telecommunication Office have initiated administrative proceedings regarding suspicion of committing administrative offences under the Consumer Protection Act (deceptive business practices) and under the Act on Electronic Communications (business in the field of electronic communications without proper notification). The administrative offence is of the company introducing fees, failing to inform its customers about the change in general terms and conditions for using the services in accordance with the relevant provisions of the Act on Electronic Communications. Administrative proceedings might result in a penalty of up to CZK 25 million.

FRANCE

COMMUNICATIONS

Framing of mobile call termination prices: the end of the favourable regime applied to new operators

Tariffs of mobile call termination (vocal or SMS) are regulated by ARCEP (the French regulator of the electronic communications and postal sectors). The regulator aims to adjust tariffs to reflect actual costs. It also intends to favour new operators by allowing them to apply higher tariffs than the historical operators (Orange, Bouygues, SFR). The television and market regulation is currently being modified.

Following comments from the European Commission, ARCEP issued a new decision on vocal mobile termination. As of 1 July 2013, all operators have to apply the same tariff. Furthermore in August, ARCEP launched a public consultation on SMS termination. Tariffs of Orange, Bouygues and SFR are framed by the decision n°2012-0892; since July 2012, they cannot invoice a price higher than 1 cent per SMS. So far tariffs of new operators are not regulated: for instance, Free (Iliad) published a price of 2.35 cents for the second semester of 2012.

If eventually this consultation leads to a tariff framework similar to that of the three largest operators, the economic impact for a newcomer, like Free, coupled with the consequences of the vocal mobile terminations tariff reduction would be significant. Sums generated by vocal mobile termination and SMS represent a significant source of revenue, constituting an important component of Free's business model. Some argue such a model could now be called into question.

http://www.arcep.fr/index.php?id=8571&L=1&tx_gsactualite_pi1[uid]=1548&tx_gsactualite_pi1[backID]=1&cHash=a4e4d1cb411a18456ac7b8aeb5e7f1f9

The Internet neutrality debate in progress (1): the French Competition Authority's decision relating to France Telecom's peering policy

On 20 September 2012, the French Competition Authority issued its decision regarding the dispute between France Telecom and the US telecommunications operator Cogent. Cogent, a transit operator, claimed that France Telecom's intention to charge a fee for opening additional interconnection capacity above a maximum traffic ratio, would "compromise the peering system".

The Authority considered that such demand would not constitute an anti-competitive practice, in light of the "highly asymmetric nature of the traffic exchanged". To charge a fee where a significant imbalance exists between the incoming and outgoing flows exchanged between two networks is a common practice in the French market.

Nevertheless, the Authority highlighted that the current lack of transparency between Orange (IPS) and Orange Transit within the group "France Telecom" could favour margin squeeze or discriminatory practices. France Telecom were therefore required to make commitments designed to prevent or, where applicable, detect any such practices.

The formal internal protocol including financial provisions adopted in response to the concerns raised by the Authority, will be submitted to the Authority within three months. Its implementation shall be monitored for two years.

For more information please go to: http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=418&id_article=1971

The Internet neutrality debate in progress (2): ARCEP's report

On 20 September 2012, ARCEP submitted its report on net neutrality to Parliament and the Government. In September 2010, ARCEP had already published 10 principles in which it emphasised the importance of a dynamic, transparent and competitive market for the quality and neutrality of Internet access. Standing by this approach the Authority has engaged in further efforts to ensure the smooth running of the system and compliance with the principles already in place.

Firstly, to track the quality of Internet service, ARCEP will specify the quality of service indicators for fixed networks - the decision should be adopted by the end of the year.

Secondly, ARCEP has started an inventory of traffic management practices implemented by operators and is monitoring their evolution. If some practices were to persist, the Authority has powers to intervene.

Finally, as regards interconnection between Internet players, the Authority does not estimate it will be necessary to strengthen the regulatory framework, but will continue to collect information on a regular basis.

For more information please go to: http://www.arcep.fr/index.php?id=8571&L=1&tx_gsactualite_pi1[uid]=1541&tx_gsactualite_pi1[backID]=1&cHash=9a8ae7ef0030be3abdc869c2853cd54f#

HUNGARY

COMMUNICATIONS

New decree entered into effect on number portability

The decree of the National Media and Communications Authority on the new rules of number portability (published in January) entered into effect on 30 September 2012, with some last minute changes two days before (see 13/2012. (IX.28.) NMHH decree). There are no major changes in the regulatory regime but mainly certain clarifications and some extra provisions e.g. the service provider handing over the number may request consultation with the other service provider prior to carrying out the port of the number in more complex cases (e.g. porting a numbering range containing more than 10 numbers, for premium phone number etc.), which can postpone the porting process. Another decree has entered into force regulating complementary analogue radio services, providing powers for the authority to issue programme identifiers ("PI") to be used in RDSs ("radio data systems") (14/2012. (IX.28.) NMHH decree).

Fourth mobile tender decision was repealed by court

In August 2011 the Hungarian Media and Communications Authority started an auction for the sale of EGSM frequency bands, enabling a fourth mobile radiotelephone network in Hungary in GSM and UMTS bands. The current three MNOs and a state-owned consortium were among the bidders for these frequency bands. On 30 January 2012 the authority announced that the winner of the auction was the consortium of Hungarian Post, Hungarian Development Bank and the Hungarian Electricity Works. They promised to start a 4th mobile network service by the end of 2012 (first in the capital only, and in two years time for all major towns and roads). The three MNOs were also granted smaller frequency blocks. The incumbent MNOs have challenged the decision of the court. The court's final and binding judgment on 17 September repealed the authority's decision on two grounds. The more important basis for repeal was related to the "voluntary" undertaking by the incumbent MNOs to provide roaming for the fourth MNO. As part of the bidding documentation, the incumbent MNOs were required to agree to this roaming obligation in order to be able to bid for the smaller frequency blocks (thus, the NRA called this undertaking voluntary). There is no concrete information yet as to whether a new procedure will be initiated at all and if so when.

The judgment is available in Hungarian at http://nmhh.hu/dokumentum/153657/900mhz_arveresi_eljaras_itelet_fovarosi_torvenyszek.pdf

Klubrádió has won another lawsuit against media authority as court rules its frequency bid valid

This was the final stage of the long-running saga in which opposition-leaning broadcaster Klubradio and Hungary's media authority have disputed the outcome of a frequency bid. In September 2012 the Court of Appeal annulled the decree of the authority, which declared the station's bid for the Budapest 95.3 MHz frequency invalid on formal grounds. The court said that as the authority had previously ruled the bid's content to be valid, it could not at a later stage to a contrary decision, citing formal grounds (which is serious breach of the rules of procedure). The ruling therefore cannot be appealed. The media authority invited bids for the 95.3 MHz frequency in July 2011. The winner of the frequency, in December 2011, was Autoradio. Klubradio appealed, and the court found in a final ruling in March this year that the media authority had wrongly awarded the frequency to Autoradio since its bid failed to meet the formal requirements. Following the court decision, the media authority declared all 11 bids submitted for the frequency were invalid, for failing to meet the formal requirements of the tender process. Klubradio insisted it had met all former requirements and appealed the authority's decision. The court's ruling was made in connection with Klubradio's appeal.

For more information please go to (available in Hungarian only): http://hvg.hu/itthon/20120926_klubradio_ervenyes_palyazat_953

MEDIA

Certificate system for online retailers

A certificate system for online retailers is to be launched on 16 October 2012. It involves a special certificate for online retailers that meet legal, consumer and data protection standards approved by the Consumer Protection Authority. Consumers who see the certificate on a website can then shop there with the assurance that it meets the relevant standards. This initiative is part of a cooperation agreement between the Consumer Protection Authority and the Non-Profit Association for E-commerce (comprising the main e-commerce businesses in Hungary). The agreement is aimed at developing the e-commerce market and ensuring compliance with consumer protection rules. Other areas for cooperation between the CPA and NPAE include joint involvement in preparing further e-commerce regulations, in organising professional training and events and in promoting the certificate system. In Hungary last year, e-commerce made up 2.4 % of retail sales. Online consumer protection becomes increasingly important as more and more people buy and sell on the internet. The NPAE has been working since 2005 to make online retailers comply with consumer protection regulations and meet the standards expected by consumers. This has largely been achieved by organising conferences and professional events to give online retailers the information they need to operate better. However since last year, it has also provided information for consumers on its website about making online purchases.

To see the cooperation agreement please go to (available in Hungarian only): http://szek.org/attachments/507_szek_nfh.pdf

ITALY

COMMUNICATIONS

AGCOM public consultation regarding the LCN plan

On 8 October 2012, the Italian Communications Authority (AGCOM) approved the draft of a measure to be submitted for public consultation with regard to the new plan of the automatic numbering of digital terrestrial television channels (LCN).

The measure follows AGCOM's decision on 4 September 2012 to extend the current numbering plan that was cancelled by the Council of State until the new plan came into force. The draft of the measure submitted to the public consultation had a 30 day duration from the date it is published in the Gazzetta Ufficiale. It takes into account the findings of the Council of State as well as the degree of necessity, in light of market developments since 2010 to date, to review the plan.

Public consultation shall serve in order to be able to collect all orientations of those interested and it shall also be supported by a survey on the habits and tendencies of television viewers. The survey shall be performed by a specialised institution chosen by way of a procedure in line with the time limits. In order to conclude the procedure, AGCOM shall use the new plan within 180 days of the date of the public consultation commencing.

For more information please go to: http://www.medialaws.eu/agcom-consultazione-pubblica-su-nuovo-piano-lcn/

The Privacy Garante Authority: new rules concerning security of data when using the network and telecommunication companies

Telecommunication companies and Internet providers must ensure the maximum protection of personal data. Pursuant to the new obligations there will be an obligation to inform end-users of serious cases of data breach which may result in loss, destruction or the undue distribution of data.

Due to the execution of the European Directive in relation to security and privacy in the electronic communications sector, recently recognised by Italy, the Privacy Garante Authority provided an initial set of guidelines by which the telecommunication companies and suppliers of Internet access services shall be obliged to follow and inform (as well as to Privacy Garante) also the end-users of the data breach that their data base could suffer as a result of cyber attacks, or other adverse events such as fire or disaster.

The guidelines used by the Privacy Garante establish; who must undertake and fulfill a communication obligation, which cases trigger the obligation to inform end-users, the forms of technical and organisational security to use in order to inform the Authority and the users of the data breach, the time limits and contents of such communication. In order to harmonise the procedures and arrangements concerning communication, the Authority has commenced a public consultation to acquire information and opinion from telephone companies and ISP's in order to evaluate the identified measure.

For more information please go to: http://www.egov.maggioli.it/articolo/16524/Internet-Tlc-sicurezza-le-nuove-indicazioni-del-Garante-della-Privacy

MEDIA

AGCOM approved a first draft rules governing the public auction for TV frequencies

The Italian Communication Authority (AGCOM) approved a draft regulation which outlines the procedures governing the public auction for the allocation of TV frequencies. Through these rules, the Italian Ministry for the Economic Development will grant (through public auction) relevant rights of use.

The mentioned draft regulation has been transmitted to the European Commission for a technical evaluation and it will then be subject to a public consultation.

As in 2006 the European Commission started an infringement procedure against Italy for breach of EU telecommunication law. The procedure is still pending final approval from the European Commission. This approval is needed in order to supersede the procedure and definitively approve the regulation governing the public auction for TV frequencies.

For more information please go to: http://www.agcom.it/default.aspx?DocID=9471

SIAE Agreement – Amazon: More legal music for a new Cloud services

An agreement has been entered into by Società Italiana Autori Editori - SIAE (Italian Authors' and Publishers' Association) and Amazon for the new Cloud service, whereby "cloud based" services are increasing in Italy. As written in the press:

"This service offered by the Amazon Store and Cloud shall increase the offer of legal content in Italy. We believe that by enlarging the consumer's choice, it is possible to better the Italian market with regard to digital music in general, not only for the public's benefit but also for the benefit of the rights holders".

This means that the new functions available to customers of the Amazon Cloud service shall permit whoever purchases a song to be able to have (at the same time) a private copy on any device such as a computer, mobile, tablet etc connected to that customer's Amazon account. And, moreover, using "Scan and Match" the Amazon service which scans the user's music files and organises and combines them with already existing files, that are part of the data base, ready for the user's streaming on demand.

For more information please go to: http://www.corrierecomunicazioni.it/media/17590_siae-amazon-accordo-sulla-musica-digitale-on-the-cloud.htm

SLOVAKIA

COMMUNICATIONS

Slovakia plans e-auctions for mobile frequencies

The Slovakian Telecommunications Authority is planning to launch e-auctions for free mobile frequencies in the 800, 1800 and 2600 MHz spectrum. While some of the auctions are likely to be designed to fit the incumbents, it is expected that this move will foster competition in the mobile market by bringing a fourth mobile operator to Slovakia. To this effect, an amendment to the Act on Electronic Communications was adopted which enables the regulator to use this method of public tendering. There is still a lot of work to be done before the auctions and can begin. At present, the regulator is looking for a consultant for spectrum valuation and management of the auctions. It is therefore expected that the auctions will not begin prior to January 2013.

SPAIN

The Ministry of Industry, Energy and Tourism lends 233.6 million Euros to 262 ITC innovative projects.

Projects will receive 48 million Euros in grants and 185.6 million Euros in loans. The most important projects for the European Digital Agenda are: increasing the competitiveness of SMEs; boosting the Smart Cities and the electronic administration to promote the creation of new contents and services without borders and improve the creation of mobility services environment.

The Industry, Energy and Tourism Minister opens two Mondragón group factories and visits Chinese technology company Huawei.

José Manuel Soria opened the Fagor Ederlan and Cikautxo components plants and visited multinational company Huawei, agreeing with them to set up a working group to assess the possibility of establishing an R&D centre in Spain. The Minister met with Spanish business leaders in a meeting organised by the Spanish Chamber of Commerce in China, during which he underlined the importance of internationalisation and the business opportunities in this Asian country.

The Ministry of Industry, Energy and Tourism will give 96 million Euros to finance SMEs, technological companies and young entrepreneurs.

The entrepreneurs can apply for loans without any further guarantee to the project itself. This money will provide services for the 3 ENISA lines and to 750 company projects, which could impact on 616.6 million Euros of investment and create 7,410 new jobs.

MEDIA

The CNC permits the merger between Antena3 and La Sexta.

The newly amalgamated company must fulfil the requirements established by the public authorities for the next five years. These requirements consist of publicity, new channels and they must transfer information about rights and obligations to the CNC.

The CNC have accepted the merger as the terms are consistent with the merger between Telecinco and Cuatro.

EUROPE

COMMUNICATIONS

European Commission Communication on promoting shared use of radio spectrum resources

Earlier this year, the European Parliament and Council adopted a decision establishing the Radio Spectrum Policy Programme (RSPP) which sets out measures to be taken by the Member States and the European Commission for the strategic planning and harmonisation of the use of spectrum. The RSPP is designed to ensure the functioning of the internal market in the EU policy areas involving the use of spectrum, including, in particular, electronic communications.

The Commission considers that wireless connectivity is becoming increasingly important in the economy. To satisfy growing demand, more efficient use of the spectrum needed for wireless connectivity and innovation are crucial. Within the next decade, technological progress may enable an increasing number of users to share simultaneous rights of access to a specific frequency band. In the Commission's view, the regulatory environment must allow this to happen.

In accordance with the RSPP, on 3 September 2012, the European Commission published a Communication on promoting the shared use of radio spectrum in the internal market. The shared use of spectrum involves different users all enjoying the right to use a given frequency band in a variety of different relationships. The Commission's vision is to make additional spectrum resources available and lowers spectrum access hurdles for new users. This will require the removal of current regulatory barriers to deploying innovative radio access technologies and, in the Commission's view, the active facilitation of sharing.

European Commission approval of mobile commerce UK joint venture

On 5 September 2012, the European Commission unconditionally approved a UK joint venture between Telefónica, Vodafone and Everything Everywhere to provide mobile commerce services. The European Commission conducted an in-depth, phase II investigation into the joint venture under Article 1 of the Merger Regulation after its preliminary investigation identified potential competition concerns. In the course of the phase II investigation the Commission found that alternatives to the mobile payment services which the mobile network operators propose to offer under the joint venture already exist. These include a number of services that do not rely on securing access to SIM cards from the mobile network operators to function. The mobile network operators also propose that the joint venture will provide advertising and data analytics services. The European Commission's investigation indicated that there will be various competitors offering such services, who will have access to a comparable set of data.

The press release from the European Commission can be read here: http://europa.eu/rapid/press-release_IP-12-938_en.htm?locale=en

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 01/11/2012.

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