European Union Telecommunications Policy
Summary and Keywords
For most of the 20th century, telecommunications was a matter of national governance and thus of peripheral interest to the European Union. Then from the mid- to late-1980s, the EU began to develop an intensified policy package for the telecommunications sector. Telecommunications has now grown to become one of the most prominent and extensive policy areas addressed by the EU. But what accounts for such a remarkable Europeanization of telecommunications governance? In polar contrast to its origins, telecommunications has become a key focus in neoliberal economics and policy in effecting sectoral change. This development went hand in hand with arguments around propounding the benefits of economic globalization, which sustained a move to internationalize the organization of telecommunications to the European level along neoliberal lines. However, notwithstanding the remarkable growth of the EU governance framework for telecommunications, there are nuances in the analysis of the constant resistance to the wholesale Europeanization of telecommunications policy that provide evidence of a residual tension between national- and EU-level interests. This tension has been evident in policy proposals, decision-making, and implementation at key junctures for more since the late 1980s The policy has played key roles at different times, in particular, on the national level, involving governmental, regulatory, and commercial actors. Telecommunications thus provides a classic illustration of the balance that needs to be struck in the development of communications policies in the EU between supranational and intergovernmental interests. Now part of a converging electronic communications sector, this feature of telecommunications governance is as prominent today as it was in the very early days of EU telecommunications policy development in the mid- to late-1980s.
European Union Telecommunications Policy
The Telecommunications Sector in Europe: From Stability to Change
For much of the 20th century, telecommunications was one of the most stable sectors in Europe. This stability went hand in hand with a highly distinctive character. Telecommunications was considered to be—along with such sectors as electricity, gas, water, and the railways—a public utility, stemming from its strong network character (Grande, 1994). In economic terms, telecommunications service provision was widely viewed as a natural monopoly. The substantial investment costs associated with purchasing the component parts for, and rolling out, a telecommunications network tended to militate against competition or, more precisely, against the development of any kind of competitive market structure outside areas of dense population, where it might be considered that the revenue streams justify market entry. This analysis of telecommunication sat alongside an understanding of its strategic significance economically and socially (Hulsink, 1999; Humphreys, 1992). Telecommunication was highly valuable to each national economy in terms of the revenue generated from the manufacturing and sale of network components and from services delivered through the network. In secondary terms, the presence of a well-functioning telecommunications system was seen more generally as a spur to economic activity: investment, production, employment, and sales in the economy could be stimulated through a so-called multiplier effect. The telecommunication system was in a number of respects also viewed as socially valuable (Bauer, 2002; Michalis, 2002). It had the potential to enrich the quality of personal, one-to-one human communication. This was particularly the case for those located in sparsely populated areas or at a distance from family and friends, and it could allow public, political, health, and security administration of various kinds to function more effectively. It is important to understand that though the telecommunication sector has been transformed in organizational and functional terms, these core staples of the sector persist, albeit, understandably, in a different articulation, owing to the passage of time.
In their original configuration, telecommunication services for most users amounted to voice telephony and for (some) businesses, simple data communication in the form of the fax, accessed through relatively simple equipment located at the ends of the network. This was, for the most part, a fixed-link network; that is, it employed a transmission system that relied on copper coaxial cables punctuated by switching centers. The economics of fixed-link telephony in terms of high (disincentivizing) investment costs, allied to the policy goal of achieving progressive network rollout, led, in Europe, to the policy solution of publicly owned monopoly or near monopoly (Bartle, 1999). Network equipment manufacturing, though more competitive, was little more than oligopolistic in nature. To facilitate international communication, European states took their places in the International Telecommunication Union, which was the context for the creation of a series of bilateral international accounting rates between countries to handle international telecommunications traffic (Hills, 2002).
However, through the 1970s and into the 1980s, telecommunications technology changed rapidly as a result of a set of key innovations that were aligned to convergence with information technology and data processing. Central to this was digitalization, which greatly enhanced the speed, reliability, and security of the network. Digitalization also meant a widespread capacity to conduct computer-to-computer communication. The telecommunications-services palette thus widened to incorporate combinations of voice, data, text, and images: so-called value-added network services, or VANS (Humphreys & Simpson, 1996). The extra capacity required for the carriage of these enriched services could be provided by optical-fiber cable technology, though the comprehensive upgrading of the network remains a work in progress—and thus a policy challenge—in most, if not all, European territories. In addition, mobile, (part-)microwave-based communication emerged from the margins of telecommunications, requiring new network rollout. The popularization of mobile communication, in which high-speed audiovisual services accessed through so-called smart phones are now commonly available, is one of the most notable changes to have affected a sector that, more broadly, has undergone nothing short of a transformation.
The new telecommunications-service possibilities arising from digitalization provided the ground for a fundamental re-examination of the structure and operation of telecommunication in Europe. Much of the reason for this was practical: there was distinct dissatisfaction with the availability (or nonavailability, as was often the case), cost, and quality of telecommunications services. Dissatisfaction was particularly strong among international business users and was expressed—not least to the governments held responsible for the then-sectoral structure—on an individual basis and through user-representative bodies such as the International Telecommunications Users Group. A particular bugbear was the lack of choice of a service provider in the publicly owned monopoly system. Strong pressure soon mounted to change the structure of telecommunication-service provision given the new technical possibilities. A key practical argument was that the economics of new VANS did not point to the natural monopoly of the existing system; rather, it suggested the potential efficacy of a competitive service market structure. These developments soon became a mutually reinforcing complement to a more general and fundamental change in Western Europe that emerged throughout the 1980s and 1990s: the growth of neoliberalism (Harvey, 2007). Originating in the economics of the conservative U.S. political right of the late 1970s, the philosophy and strategies of neoliberalism soon gained ground in the United Kingdom. In outline, the message of neoliberalism was simple: a philosophical emphasis on individual interests over group interests cast as liberation and empowerment; the rolling back (though not complete eradication) of state influence in economic and social life; and, lastly, a view of the market as the superior form for organizing economic and (ultimately) social life. For many, the predominance of neoliberalism and market relations extends into most, if not all, aspects of social life, not least culture. In practical terms, telecommunications presented the advocates of neoliberalism with a tailor-made case for introducing neoliberal reforms. The sector was state run. It was highly uncompetitive, but technological change had appeared in certain of its key parts, suggesting the amenability of introducing competition. Elsewhere, modest competition could be engineered as a starting point, in line with the orientation of the neoliberal approach to marketization (Jordana, 2002; Steinfield, 1994).
In the United Kingdom, the forerunner economy of telecommunications policy change across the EU, radical change in the ordering of telecommunications ensued (Bartle, 2002). The incumbent telecommunications operator was partly, and then completely, privatized, and a competing service provider introduced. Companies were awarded new licenses to provide VANS. A nascent mobile communications market was created through the licensing of a duopoly of network operators and, thence, a raft of service providers. A new, independent national regulatory authority, in the form of the Office of Telecommunications (OFTEL), since 2003 called the Office of Communications (OFCOM), was created to set in place, enforce, and develop a regulatory framework for the functioning of a competitive telecommunications market in the United Kingdom. The prototypical ground was now set for a neoliberalized and radically reformed telecommunications-policy model in Europe. The U.K. model was soon emulated, though far from replicated wholesale, across the rest of Europe and even outside Europe (Simpson & Wilkinson, 2002; Thatcher, 1999; Werle, 1999). As this complex process unfolded in the late 1980s and 1990s, a key a player emerged in the form of the European Union. EU telecommunications policy was born.
The Emergence of EU Telecommunications Policy: Rationale Building and Political Controversy
Indeed, it was in considerable part the complexity, uncertainty, and radically different approach to the organization and functioning of telecommunications the 1980s had heralded that presented the EU with an opportunity to increase what until then had been a relatively marginal involvement in telecommunications policy, such was the Union’s national centricity. A number of key elements combined that explain the emergence and growth of the EU as an actor in telecommunications. It is important to note that in a territory as varied as the EU—even with its small-by-today’s-standards number of 12 member states at the time—policy change in telecommunications was developing at different speeds and to different extents at the national level. The EU had found an opportunity and was seen as important in delivering a coordinative role in the emergence of a regulated-market liberal telecommunications space across most of Europe (Roy, 2002). However, as will be exemplified in the section “Establishment of EU Telecommunications Policy: The 1998 Regulatory Package,” the EU did much more than play the role of a policy coordinator and facilitator. In fact, at a number of key junctures, the EU can be seen as something of a policy leader or an entrepreneur (Cram, 1994). Combining policy leadership and its coordinative and faciliatory roles required significant political skill and awareness—which were predominantly, though not always, in evidence—particularly at junctures of forward policy movement and resistance to change. A strong feature of the evolution of EU telecommunications policy is the effort that has been made to strike an acceptable balance among a range of different national interests. Related to this has been the need to secure agreement among the main EU institutions that have been involved in telecommunications policy development: the European Commission (the EU’s civil service, which consults and proposes new policy initiatives), the European Council of Ministers (made up of political appointees from the national member states, who vote on proposals produced by the European Commission), and the European Parliament (comprising directly elected members from the EU member states who vote on decisions made by the European Council of Ministers).
A raft of highly important economic issues also contributed to the rationale for the widening and deepening of the EU’s involvement in telecommunications policy. In the late 1980s, there was a growing emphasis on the international nature and potential of telecommunications. However, given the history, understanding the implications of a potentially open international telecommunications-services market was challenging. The EU, which amounted to a considerable part of the global market, was viewed by many, particularly the larger EU economies and their telecommunications operators, as a useful staging post for gaining a foothold in the international potential of the telecommunications (Schneider, 2002). EU member states had been part of a (far from completely developed) common market since 1957, which set important ground for the consideration of telecommunications as a more competitive Europeanized sector. In this environment, from a customer perspective, a more open, common European market could deliver on the neoliberal promises of lower prices and improved service quality. However, though cross-member-state market integration in telecommunications was certainly a possibility, the extent to which it could be achieved was an open question (Michalis, 2004).
Political reasons also underpinned the interest in developing telecommunications as an EU policy area. First, in both politically symbolic and practical consumerist terms, enhanced telecommunications-policy cooperation had the potential to “make Europe a smaller place” by allowing cheaper, cross-EU communication. Tied in with this was the opportunity to add telecommunications to the portfolio of industries characterized by strong European economic integration. Although telecommunications had historically been one of the most unlikely candidates for such a move, legal measures could be devised at the EU level that set out the parameters of a more liberalized and potentially integrated European telecommunications market. This process, in turn, presented opportunities at the EU institutional level, particularly for the European Commission, though also, to a lesser extent, the European Parliament. The Commission’s functions and broader political instincts led it to focus on the telecommunications sector, which by the mid- to late-1980s had come to be regarded not only as providing an opportunity for but even necessitating the development of EU policy activity. During the subsequent decades, the Commission developed into a key telecommunications-policy player, liaising with key industry actors; launching sectorwide consultations; proposing new legislative measures and telecommunications recommendations for member states to decide on; monitoring compliance with legislation passed by the member states; and representing the EU in global fora for the negotiation of telecommunications agreements, notably the World Trade Organization.
Despite the fertile ground for developing EU telecommunications policy, there was at the same time reticence about—even opposition to—potential developments in this direction. Across various parts of the EU existed ideological opposition to neoliberalism. That its proponents considered the telecommunications sector tailor-made for neoliberal reform made it equally tailor-made for resistance by the opponents of such change. In particular, many considered the long-established public-service and public-interest aspects of telecommunications to be intrinsically undermined by the process of state withdrawal and the introduction of competition and regulation (Simpson, 2009). The fact that such parameters might be set in place at the EU level pointed toward a reduction in the ability of national-level actors to resist change in this direction as their messages were increasingly overlaid by an agenda of economic internationalization (Cerny, 1997; Ohmae, 1991). This concern was particularly strongly felt in the smaller member states, even those that were generally favorably disposed to the liberalization of telecommunications. Here, a distinction is to be drawn between liberalizing domestically and opening up the sector to international competition, with the risks such exposure might bring to indigenous service providers. It was also the case that even among many arch neoliberals, notably Margaret Thatcher’s Conservative government of the late 1980s, there was deep concern about ceding policy power to the EU. There was a particular focus on the potential institutional growth of the European Commission. For these actors, the potential advantages of the Europeanization of telecommunications through the EU route needed to be carefully balanced with measures to ensure that control of the evolution of the sector would be remained in predominantly in national hands (Thatcher, 2002). This is the classic general dilemma of Europeanization, and not easy to achieve, as the case of telecommunications illustrated.
The Establishment of EU Telecommunications Policy: The 1998 Regulatory Package
The decision to create competition in telecommunications services by establishing new markets with license-based entry and by opening up existing markets to competition, was a highly significant one. That a policy strategy to drive through such change at the EU level should have developed through the late 1980s and into the next decade was remarkable. However, a complex milieu of factors came together over an approximately seven-year period, from 1987 to 1994, to ensure that member states resolved to do just that. First, the United Kingdom and Germany—two of the EU’s leading political players—were forerunner telecommunications liberalizers and were keen to see the markets for telecommunications terminal equipment and VANS opened to Europe-wide competition (Humphreys, 1992). The United Kingdom had even gone further than this by creating competition in voice telephony. By the late 1980s, Germany, too, was of the view that this market could usefully be opened to competition, albeit in a limited way. Second, a strong international business-user lobby made its voice heard and urged the opening of telecommunications services to competition at the EU level. Within the institutional corridors of the EU, the European Commission had become emboldened enough to present, in a green paper, proposals for the creation of a single European telecommunications market (European Commission, 1987), whose liberalization and Europeanization thrust chimed with a broader single-market project underway across the EU at the time (European Commission, 1986). Sensing strong opposition to the liberalization of voice telephony, the Commission nevertheless signaled its intention to propose liberalizing telecommunications terminal equipment and VANS. It was acutely aware, however, that liberalizing legislation in the form of directives in these areas would be subject to enough opposition in the Council of Ministers to make their passage into law impossible. Nonetheless, displaying an audacious policy entrepreneurial role, the Commission invoked article 90 of the Treaty of Rome (now article 86 of the Treaty on European Union), specifically, a clause the Commission claimed required it to put in place direct, necessary measures to eradicate positions of dominance held by public undertakings in relevant markets. The Commission argued that the Postal, Telegraph and Telephone (PTT) administrations in member states, which were at least partly publicly owned, were abusing their position with respect to article 90 in the markets for the sale of telecommunications terminal equipment and VANS. As a consequence, it released two liberalizing directives (European Commission, 1988b; European Commission, 1990) in these areas that when implemented would require open EU-wide competition. The ensuing period was the most controversial one in the history of EU telecommunications policy. It had two key components: a fascinating lead-up to a “liberalization tipping point” and a debate on the extent to which the European Commission—an unelected body—might be allowed to introduce legislation whose process directly bypassed the Council of Ministers and the European Parliament (which, at that stage, had merely a consultative role vis-à-vis the Council’s decisions).
France issued a legal challenge to the Terminal Equipment Directive, and there were three other separate challenges to it by, respectively, Spain, Belgium, and Italy. However, negotiations ensued in 1989 and 1990 between the Commission and member states that removed the political controversy from the Commission proposals (Humphreys & Simpson, 2005).
The solution manifested itself in what became known as the Open Network Provision (ONP) compromise, in which member states agreed to open up all telecommunications services to competition except public voice telephony and basic data transmission services. A key feature of the compromise was freedom it granted member states to put in place public service obligations—which nevertheless needed to be in line with EU competition rules—on the private service providers that leased lines from the incumbent on the public network. By this stage, all member states had come, however reluctantly, to the realization that the liberalization of telecommunications services was inevitable and could even be desirable. Nonetheless, it was argued that liberalization should not be allowed to completely do away with the public service element that had been so strong in the evolution of telecommunications. It also became clear to member states that liberalizing telecommunications services would require separating the operational and regulatory functions of their telecommunications administrations, though this was never expressly required by the EU legislation. Beyond that, creating competition in an historically monopolist-dominated network-services environment would require putting in place a raft of regulatory measures to ensure fair levels of access to the network so as to provide services competitively. Thus the era of independent, publicly regulated, competitively ordered telecommunications services in the EU was born (Steinfeld, Bauer, & Caby, 1994; Thatcher, 1999).
In conjunction with the passage of the liberalizing Telecommunications Services Directive, the EU also, through the standard legislative process (not article 90), put in place a key directive on the ONP. This directive was structured as a harmonizing framework in which the member states agreed to put service stipulations in place that would allow network service-provider interoperability and to create a technical committee that would liaise with a range of parties—from network operators, equipment manufacturers, and users to the Commission—to ensure that the directive was implemented effectively. The ONP directive was pivotal in the evolution of EU telecommunications policy. It “took the heat” out of the use of article 90 by the European Commission. By the time the European Court of Justice had issued a final judgment with respect to the article 90 cases in front of it (which, remarkably, endorsed the Commission’s procedural right to use article 90), a liberalization tipping point had been reached at the EU level. Yet equally, the Commission realized the limits of its ability to mount challenges of this kind to member states. The policy idea of ensuring balance between the national and EU levels was thus ensconced in EU telecommunications policy. The ONP directive was also highly significant in that it paved the way for the passage of a raft of directives at the EU level that specified the harmonization of key parameters of the neoliberal telecommunications model, such as licensing, interconnection, and, as a public service counterweight, universal service (Goodman, 2006).
Once the liberalization tipping point had been reached, the EU telecommunications regulatory package developed quickly throughout the 1990s. Following a comprehensive Telecommunications Services Review, in 1992, EU member states agreed to open up all public voice-telephonic services by 1998 (European Council of Ministers, 1993). After this, in 1994, in the light of the key report Europe and the Global Information Society (European Commission, 1994a), also known as the “Bangemann Report” after the committee’s chair, Martin Bangemann, member states agreed to liberalize all telecommunications infrastructures by the beginning of 1998, in line with the voice-service liberalization (European Council of Ministers, 1994). According to Humphreys and Simpson (2005), a number of factors explained this dramatic series of policy developments. First, telecommunications was developing into a global industry in which national protectionism was increasingly viewed as outmoded. Second, the former PTT incumbents of the larger EU economies, many now newly corporatized or partially privatized, were hungry to pursue commercial opportunities outside their national territories. Third, even among the smaller member states, whose commercial players were unlikely to benefit from international expansion, the lower consumer prices and quality-of-service improvements seen in the states that had liberalized early, notably the United Kingdom, were a significant factor in their agreeing to liberalization. The EU was also able to serve as a useful “policy alibi” for states facing domestic opposition to the changes. Thus the emergence and development of the EU telecommunications regulatory framework, as it came to be known, was the result of a combination of national- and European-level factors in the context of a changing techno-economic telecommunications environment.
By 1998, through the passage of a battery of legislative measures, the ground was set for a broadly re-regulated EU telecommunications sector to begin operation. These directives were of two characteristic kinds. Six liberalizing directives were enacted through article 90 (now article 86). Six others were, by contrast, harmonizing directives, enacted through article 100a (now 95). Central to the establishment of liberalized telecommunications markets in the EU were the 1996 Full Competition Directive (European Commission, 1996); the 1997 Interconnection Directive (European Parliament and Council, 1997b); the 1997 Authorisation and Licences Directive (European Parliament and Council, 1997a); and the 1997 Universal Services Directive (European Parliament and Council, 2002c), which, under the aegis of the EU, provided a service-public balance to a re-regulation of telecommunications across Europe that was strongly liberalizing in its thrust.
Policy Implementation and Refinement: Media Convergence and the Electronic Communications Regulatory Framework
The setting in place of a comprehensive policy framework at the EU level for the re-regulation of telecommunications was for, the European Commission, the culmination of a 10-year project (European Commission, 1998a). However, though it was a crucial landmark, in reality establishing this framework was only a relatively early stage in the evolution of EU telecommunications policy. An important series of developments and refinements of the regulatory framework followed. The process has continued to set the character of EU telecommunications policy.
A key characteristic has been the European Commission’s almost constant monitoring of the performance of the framework, in line with one of its core responsibilities and competences. This monitoring of the extent of compliance of member states in the transposition and implementation of the directives of the framework has been prominent in a series of annual implementation reports. The Commission has also been keen to monitor the state of competition in the different national markets and, in particular, the reasons behind the evidence of limited competition. This activity has amounted to a very large information-gathering and -processing exercise in which the Commission has relied heavily on the series of independent, publicly resourced National Regulatory Authorities (NRAs) for telecommunications that were established at the member-state level. It is important to note that none of the liberalizing or harmonizing legislation passed at the EU level required member states to set up these authorities (Thatcher, 2004a), though such moves were an inevitable corollary of the commitment to remove operational and regulatory control from the former PTT incumbents and to police an increasingly complex system of market regulation.
The monitoring process was supplemented by a series of broader consultation and stock-taking exercises that have led successively to the proposal by the European Commission of changes to the regulatory framework. A key landmark occurred in 2002 with the Commission’s proposal, duly accepted by member states, for a significant streamlining of the regulatory framework. Prior to this, there had been a major debate on the future regulation of communications at the EU level in the context of ongoing processes of media convergence (Levy, 1999). Telecommunications is now a fundamentally important part of a converging media world in which distinctions between IT, telecommunications, broadcasting, and publishing have become increasingly blurry. Media convergence is a long-standing and complex process enabled by the digitalization of telecommunications and then mass-communication broadcasting. The popularization of the Internet that began in the mid-1990s had created a new online context in which voice-, data-, and image-based forms of communication have developed in unprecedentedly integrative ways. Media convergence has, at times, presented EU telecommunications policymakers with opportunities to establish and develop telecommunications policy. Early on, the changing economics of telecommunications services enabled by the growth of VANS provided a context for the EU to forge ahead with the liberalization of telecommunications services. Convergence has also been symbolically important for the EU, with its connotations of change in the direction of “coming together.” The European Commission has, at key moments in the development of its telecommunications policy package, adopted aspects of the discourse of convergence to advocate policy change. This has involved issuing calls to action to member states to address areas in which the EU is seen to be lagging behind on convergence, and also pointing out the opportunities from media convergence around the Internet, in particular. However, grappling with media convergence in policy terms has highlighted the political limitations of the EU as a setting for telecommunications policy. This was particularly evident in the late 1990s, when the Commission launched a policy drive to create a more convergent regulatory framework for media at the EU level, which, at its most ambitious, would have covered broadcasting, IT, publishing, and telecommunications (European Commission, 1997a). The Commission’s move precipitated a period of controversy that illustrated two key problems for the EU’s pursuit of a broader and deeper media policy based on convergence (Simpson, 2000). First, the broadcasting sector strongly opposed moves that would regulate more commonly broadcasting and other forms of electronic communication per se. This objection has lessened since the 1990s, not least because the broadcasting players have to a significant degree gravitated toward the Internet, though it is clear that a complete convergence of broadcasting with other forms of electronic communication is still some distance away. Second, the historically national centeredness of broadcasting regulation across the EU meant strong resistance to the transference of regulatory sovereignty over media content to the supranational level. This has been a persistent feature—and an impediment to the deepening—of EU broadcasting policy for more than three decades.
The upshot of the EU’s policy engagement with convergence in the late 1990s, though politically sobering for the European Commission, was, nevertheless, significant for the further development of its telecommunications policy. In essence, telecommunications provided “face saving” convergence-policy development for the EU. A new Electronic Communications Regulatory Framework (ECRF) was agreed and came into force in 2003. Although its name strongly connoted convergence, the ECRF was, in fact, telecommunications-policy centric. Specifically, the new framework covered the regulation of all electronic communications infrastructures, but not content beyond that already contained in the 1998 telecommunications regulatory framework. Excluded at that point were broadcast content and so-called information-society services. This referred to content services of any kind offered through the Internet. Since that point, the telecommunications-policy package has developed under the mantle of electronic communications.
The 2003 regulatory package dramatically reduced the number of sector-specific regulatory measures in telecommunications from 20 to 7. A key objective was to incorporate a regulatory convergence perspective to all electronic communications network infrastructure and associated services: the new framework covered fixed and mobile telecommunications networks, cable TV infrastructures, terrestrial broadcast networks, and Internet infrastructure. The revised framework comprised two liberalizing measures: a regulation on local loop unbundling, which had been introduced in 2000 (European Parliament and Council, 2000) in response to a perceived stubborn lack of network competition in the so-called last mile of the network; and a new competition directive (European Commission, 2002a). It also contained harmonization directives concerning such matters as access and interconnection (European Parliament and Council, 2002a), authorization (European Parliament and Council, 2002b), universal service (European Parliament and Council, 2002c), and data protection and privacy (European Parliament and Council, 2002d), as well as a framework directive (European Parliament and Council, 2002e).
A major feature of the evolution of EU telecommunications policy has been the attempt by the European Commission to secure member states’ agreement to create a regulatory telecommunications body at the European level. This became a particularly significant issue for the Commission when evidence began to suggest persistent difficulties in securing the degree of regulatory harmonization necessary for the pursuit of a genuine single European market in telecommunications (Bartle, 2001). Such efforts were bound up with an evident desire on the Commission’s part to gain more direct influence in regulating telecommunications markets across the EU. As part of the process that leading to the creation of the ECRF, in 2003, the Commission proposed—and was successful in securing agreement to create—the Communications Committee, which effectively replaced the existing ONP and licensing committees and comprised member state telecommunications appointees. However, the Commission also proposed, unsuccessfully, the creation of a high-level communications group in which it would have played a pivotal decision-making role alongside the NRAs. The European Regulators Group (ERG) emerged from this policy deliberation as a compromise solution. Replacing the High-Level Regulators Group established in the 1998 Regulatory Framework, the ERG was made up of the NRAs and the Commission, the latter present in a nonvoting capacity. The purpose of the ERG was to facilitate coordination between the NRAs, in particular to ensure as much commonality as possible in the implementation of the telecommunications regulatory framework. A key feature of the ERG was its secretariat, resourced by the Commission. The ERG marked the formal institutionalization of a committee of NRAs at the EU level.
The persistence of the Commission and the securing of policy compromise in the context of an ongoing struggle between the national and EU levels for regulatory power in telecommunications are key features of the evolution of the EU policy environment. The latter was particularly evident in the Commission’s desire to secure for itself a veto over certain key regulatory decisions taken at the national level. An example was a proposal to allow it, through a legally binding decision, to specify telecommunications submarkets that would be subject to sector-specific regulatory measures. Similarly, any proposed market regulation in additional areas desired by member states would have to secure the Commission’s agreement. Member state opposition to this proposal was, unsurprisingly, strong and resulted in a downgrading of the Commission’s input to the status of a non-legally-binding recommendation, derived after public and NRA-based consultation. Another example centered on the debate in the lead-up to the agreement on the 2003 ECRF over a potential veto for the Commission on NRA decisions to remove ex ante regulation from a particular submarket. After much, often fractious exchange, it was agreed that the Commission could only exercise the veto power if there was a European dimension to the decision. Thus, article 7 of the ECRF’s Framework Directive allowed the Commission to veto decisions about which operators exercised Significant Market Power in specified markets and also in relation to markets not identified by the Commission as needing sector-specific regulation. The NRAs also met as part of a more informal, pan-European Independent Regulators Group, separate from the EU policy apparatus, which was in part indicative of their desire to exercise epistemic interaction outside the presence of the Commission (Humphreys & Simpson, 2005).
Nevertheless, the idea of creating a stronger EU-level telecommunications regulatory authority persisted in the mind of the Commission and surfaced strongly in 2007 as part of a review of the ECRF. The Commission issued a proposal for a regulation to create a new such body, which it justified based on persistent evidence of inconsistent regulatory practices, leading to unfair competition in telecommunications across the EU. The Commission held the loose coordination among the NRAs that existed in the ERG as an impediment to to achieving greater consistency. The proposed new body would have had a much greater supranational dimension in which the Commission’s influence would have been stronger. An administrative board whose members would be appointed by the Council of Ministers and the Commission in equal measure would have overseen the new body’s board of regulators, made up of a member from each NRA The work of the new body was to be used by the Commission to inform it with respect to decisions it would make related to the veto powers it already held and, more importantly, to a new right of veto—which the Commission had sought in its proposals for revision of the ECRF—related to the regulatory remedies specified by the NRAs with respect to identified problems in the national telecommunications markets. The latter proposal was firmly rejected by member states in the agreed revisions to the ECRF, although the new procedure did give the Commission more objection-raising and discursive scope to disagree with remedies produced by NRAs (Simpson, 2011).
The proposal for the new regulatory body would have created significant supranationalizaton of EU telecommunications policymaking, in which the European Commission’s policy power would have grown considerably. It was unsurprising that the proposal was met with strong opposition from the NRAs, but adverse reaction was strong also from the European Parliament. The latter produced a counterproposal in which the Commission’s proposed administrative board would be absent from the new regulatory body, and only one third of the budget would come from EU resources. Despite this supranational character, it is interesting that the European Parliament declared its wish to see a regulatory system underpinned by subsidiarity and minus any kind of supranational European regulatory agency, something it feared would be the consequence of the Commission’s proposal. After considerable deliberation, the Council of Ministers and the European Parliament agreed on the creation of the Body of European Regulators in Electronic Communications (BEREC) to replace the ERG. The BEREC is essentially intergovernmental in nature, being a forum for cooperation among s through its board of regulators, very much akin to the ERG. A major difference, though, providing a Europeanized character to the new body, was the establishment of the BEREC office, an administrative arm, as a formal, legally established Community body with legal, administrative, and financial autonomy (European Parliament and Council, 2009a, p. 2; Simpson, 2011).
Current Policy Challenges of Convergence and the Future of European Union Telecommunications Policy
In the early 21st century, EU telecommunications policy—like the electronic media environment as whole—continues to be strongly influenced by matters of media convergence. A thorny issue has been the relevance of Internet (or net) neutrality to EU telecommunications (Wu, 2003). Net neutrality first emerged as a high-profile issue in the negotiations, begun in 2006, that led to the revision of the ECRF. The upshot was the inclusion of an appendix to the 2009 Better Regulation Directive (European Parliament and Council, 2009b) that contained a “Declaration on Net Neutrality,” formulated by the European Commission. The ECRF allows member states to act against discriminatory action taken by Internet service providers with respect to content. The Commission addressed net neutrality further, in 2013, in a proposal in the broader area of the single market in electronic communication, something that proved controversial. Particular concern centered on the extent to which the EU would allow so-called paid prioritization for Internet services. In October 2015, the European Parliament voted in favor of new net-neutrality regulations (European Parliament and Council, 2015) that epitomize the policy tightrope the EU has to walk with respect to the more controversial aspects of electronic-communications regulation related to the ECRF. Specifically, going forward, the regulation allows member states to stipulate the provision of what are termed guaranteed-quality services. It is important to note that services related to Internet access are not included in this term. Once the legislation is enacted, these services will only be permitted by NRAs if it is deemed that the network is sufficiently capacious to allow them to exist in a way that is not detrimental to the provision of Internet services to other users.
The intertwined elements of telecommunications and the pursuit of a common market across the EU were strongly rearticulated in 2015, when the European Commission declared the goal of creating a connected digital single market (European Commission, 2015), specifically mentioning the need to address fragmentation in telecommunications regulation. In May, it issued a communication on the creation of a European digital single market with three key goals: improved access to online goods and services; creation of appropriate conditions to see the future growth of digital networks and services; and maximization the growth of the European digital economy (European Commission, 2015). As part of the action lines associated with the pursuit of these goals—and in a by now very familiar fashion—the Commission launched a review of the telecommunications regulatory framework in July. It noted key changes that had occurred since the last review, placing particular emphasis on the broad and highly costly process of upgrading network infrastructure; the convergence of fixed and mobile communication networks; the emergence online of vertically integrated, convergent so-called over-the-top (OTT) service providers; and the strong rise in demand for wireless data from consumers (European Commission, 2015, p. 1). OTT service providers, which are governed by different regulations than telecommunications service providers, yet whose services appear increasingly substitutable with traditional electronic-communications services, such as voice telephony, were singled out for attention. In a related action, in June 2015, the European Parliament and the Council of Ministers reached agreement on a 2013 proposal from the European Commission to take measures to deliver a so-called Connected Continent.
In launching its 2015 review, the Commission noted a number of areas of concern: whereas the regulatory framework to date was viewed as having ensured that “markets operate more competitively, bringing lower prices and better quality of service to consumers and businesses,” the Commission also remarked that “it can be questioned as to whether it has sufficiently promoted the transition towards high capacity Next Generation Access (NGA) networks fit to meet future needs” (European Commission, 2015, p. 3). Although some market integration had occurred, it was still the case that “progress is slow and the provision of connectivity to business and consumers remains highly fragmented and diverse across the Union.” The Commission was also directly critical of what it described as “the institutional set up” in the EU, making reference to both NRAs and the BEREC, though not specifying any details (p. 3). These issues would be addressed through a review examining what were described as the three pillars of the EU regulatory telecommunications framework related, respectively, to networks, services, and governance.
The first stage of the review was a by-now familiar consultation exercise. The Commission invited views on the regulatory framework and on potential changes to it based on three pillars: network regulation to ensure appropriate levels of investment in fixed and mobile infrastructure; services regulation to cater to a growing environment of diverse online services; and the operation of the regulatory framework consistently in national telecommunications markets, in particular concerning the increasingly important matter of radio spectrum. The current review is absent a consideration of the important matter of roaming, which has been dealt with separately through an EU regulation aimed reducing the cost to consumers of using their suite of domestic mobile communications services while abroad (European Parliament and Council, 2015).
A key issue for the EU going forward is the regulation of spectrum, where convergence figures prominently. Here, the coming together of fixed and mobile communications platforms raises concerns about securing appropriate levels of interfacing at the infrastructural level, an issue that is clearly within the remit of the existing EU regulatory framework. At the content and services provision and consumption level, the dramatic growth in on-the-move online services has sparked a debate about the extent to which current allocations of spectrum might need to be changed. This debate has largely been separate from discussions of the telecommunications regulatory framework. In particular, the mobile communications industry has pressed hard for a reallocation of key parts of the spectrum away from broadcasting and broadcast-related uses and toward mobile communication. The so-called digital dividend has provided an initial context for and stimulus to this debate. Such pressures from the mobile communication industry have met with resistance from established spectrum tenants from the broadcasting sector. Discussions have also centered on how to make the current allocation and use of available spectrum more efficient in the light of technological changes. In launching its review, the Commission raised spectrum as a convergence-underpinned infrastructural matter with a European dimension. It questioned whether a more harmonized approach to the allocation might need to be developed across the EU. Equally, it entered the debate on potential spectrum reallocation from an infrastructural perspective by raising matters related to so-called spectrum sharing in which “the combined net socio-economic benefit of multiple applications sharing a band is greater than the net socio-economic benefit of a single application” (European Commission, 2015).
In March 2016, the Commission provided an initial informal analysis of the results of the consultation. A key concern of former telecommunications incumbents is that the system of regulated competition has sacrificed long-term investment for short-term, market-based outcomes. It is also clear that there is likely to be a feisty debate between telecommunications operators and so-called OTT companies over whether the latter should be regulated in the same fashion as the former (Michalis, 2016) given the potential substitutability of the services provided by both. Predictably, there was evidence of a difference of opinion among the range of respondents about changes to the framework, suggesting that the future of EU telecommunications is likely to be at least as contested as its past.
Historiography: European Union Telecommunications Policy
The emergence of the EU to prominence as an actor in telecommunications has been one of the more remarkable developments in the international communications-policy landscape since the late 1980s. Explaining its evolution and development has therefore garnered considerable attention from communication-policy scholars. Conceptual contributions to understanding EU telecommunications policy can be grouped into three interrelated areas: the relative influence of the EU and the national levels in policy development; the changing international political economy and telecommunications; and the evolving nature of EU telecommunications regulatory governance.
Unsurprisingly, one of the key concerns in the academic research on EU telecommunications policy has been to understand the relative influence exerted by the national and the EU levels on policy development. Scholars Mark Thatcher (1999, 2001, 2004b) and Ian Bartle (1999, 2002) have emphasized the importance of national-level economic and political interests in the development of EU telecommunications policy. National-level political actors, in particular, are seen to be central to the creation and evolution of EU-level policy. Thus, policy outcomes are primarily the product of agreements between different national interests and reflect the exertion of preferences and the securing of compromise in classic intergovernmental fashion. An equally important dimension of this research highlights the ability at the national level to download and absorb policy agreed at EU level through policy filters and the political modus operandi characteristic of national-level interests.
Other early research on the emergence of the EU, given its remarkable and swift rise to prominence in telecommunications through the 1980s, emphasized the EU institutional level. The EU was viewed as a corporate actor (Schneider, Dang-Ngyen, & Werle, 1994) that was driving policy forward in key instances independently of the national interests of member states. The supportive role telecommunications business interests played in this process has been emphasized in a generally neopluralistic policy landscape of the kind characterized much earlier by Lindblom (1977). Other research at this time emphasized the importance of the growth and relative power of the EU level (Sandholtz, 1993, 1998). As EU telecommunications policy has matured, research has emphasized the complex interplay between the national and EU levels in decision-making and policy implementation (Goodman, 2006; Humphreys & Simpson, 2005; Michalis, 2004). Bartle (2002) notes the way the EU provided a policy alibi, for member states in the implementation of EU telecommunications policy legislation or, put colloquially, “the EU requires us to do it.” Other research has emphasized the way in which the European Commission has drawn on its competition-policy powers to intervene in telecommunications policy (Schmidt, 1998; Schneider & Werle, 1990). This was evident in the late 1990s in the Commission’s position that it would approve a proposed joint venture between France Telecom and Deutsche Telekom, known as Atlas, related to the provision of international leased lines and services, only if Germany and France agreed to the liberalization of so-called alternative telecommunications infrastructures (Schmidt, 1997, 1998). The Commission has also intervened on competition grounds to oppose the provision of so-called regulatory holidays to incumbent providers to allow them to invest in network infrastructure (Simpson, 2009).
The telecommunications sector has attracted considerable research from scholars interested in changes in the international political economy. The influence of neoliberal globalization and its relationship to, and implications for, the national level in telecommunications has garnered particular attention. Classic features of telecommunications policy change highlighted in this article: liberalization, the creation of new markets, state withdrawal through (partial) privatization, and the creation of new public regulatory authorities at the national level resonate with the growth of the neoliberal regulatory state (Seidman & Gilmour, 1986) and, internationally, of the European regulatory state (Majone, 1994, 1996, 1997). The manifestation of a regulatory state in telecommunications at the national level in the United Kingdom and Germany has been addressed by Bartle, Müller, Sturm, and Wilks (2002) and Coen, Héritier, and Böllhof (2002). Belloc, Nicita, and Parcu (2012) highlight the importance of NRAs in delivering competition in telecommunications at the national level. The development of EU telecommunications policy is also seen to have created an interplay between the competition state and the regulatory state (Humphreys & Simpson, 2008). The pursuit of competition in telecommunications has, ironically, required a complex and detailed battery of rules.
A third major strand of scholarship on EU telecommunications policy aims to characterize the kind of governance in evidence in the sector. The focus has been the nature of EU legislation and how that reflects the complex relationship between national- and EU-level interests. Recent work has recognized the role and limitations of so-called hard governance and soft governance entailed in EU policy measures. Evidence suggests that in the revised regulatory framework agreed in 2009, the EU prompted the use of soft governance measures as means of ensuring political compromise. Used in this way, the potential deliberative and flexible advantages of soft governance are at risk of not being realized (Simpson, 2011). An interesting finding is that the use of both hard governance and soft governance has been a way of addressing the limitations of each when deployed solely (Simpson, 2013). As EU policy has developed, research has focused on the extent to which networked governance has emerged. Evidence suggests that a system of cross-linked NRAs, discussed elsewhere in this article, facilitated by European-level resources has been in operation (Thatcher & Coen, 2008). The functioning of this governance network ties in with an analysis of the EU’s attempts to create a stronger institutional apparatus for regulating telecommunications at the European level and attempts to resist such moves. Humphreys and Simpson (2008) have nevertheless characterized a complex regulatory system—a “two level pluri-dimensional governance order”—where the European Commission sits prominently in a devolved and diverse regulatory system.
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