Regulating the Infrastructure in Digital Television within the UK Context Did the 2003 Communications Act remedy the mistakes of the past? Eliza Varney The University of Hull ITS Conference, Policy and Regulation for Digital Broadcasting Berlin, 4-7 September 2004

2 Introduction This paper assesses the extent to which the 2003 Communications Act provides an effective response to the regulation of the infrastructure in digital television. Reference is made to previous flaws associated with the implementation of the 1995 Advanced Television Standards (ATS) Directive. Particular emphasis is placed on the regulation of bottlenecks. This is approached from a dual perspective: I. Economic concerns (technical and competition-related challenges). II. Public policy concerns (non-economic interests, such as pluralism and diversity and citizenship-related concerns). The study demonstrates that, while responding to the technical aspects of bottlenecks regulation, the Act fails to address adequately the public policy implications of the bottlenecks challenge.

3 Part I: Economic concerns Need to advance a common framework for regulating bottlenecks.  ATS Directive: Failure to cover interactive services. Need for a “horizontal approach” in regulating electronic communications networks and services;  Oftel: Measures covering “access control services” to avoid tying regulation to a particular technology;  Communications Act: Move towards a horizontal approach. Over-emphasis with CASs.  ATS Directive: Over-emphasis with CASs, at the expense of APIs and EPGs.  Oftel: Went beyond what was required in the ATS Directive and included EPGs in its interpretation of CASs.  Communications Act: specific reference to the regulation of APIs and EPGs. Extends to receivers the requirement to provide access on a fair, reasonable and non-discriminatory basis. Failure to define “fair, reasonable and non-discriminatory access”. (FRND).  ATS Directive: Did not define FRND.  Same level of ambiguity in the 2002 Directives in the 2003 Communications Act.  Oftel: guidelines on FRND. However, these are not binding. Standardisation.  Effective access to networks can be guaranteed only by ensuring open standards or interoperability between proprietary technology.  ATS Directive: lack of adequate measures to address these issues.  The 2003 Communications Act “encourages” rather than mandates standardisation.

4 Part II: Public Policy Concerns The bottlenecks challenge affects the public not only as consumers but also as citizens.  Public policy dimension: non-economic interests, such as pluralism and diversity and citizenship- related concerns. Any room left for active regulatory intervention designed to safeguard citizenship interests?  Deregulatory nature of the Act. The Act does not place sufficient emphasis on the public policy dimension of regulating bottlenecks.  Within the current framework, references to citizenship interests are minimal:  Although the pursuance of citizens’ interests is placed as the primary duty of OFCOM (s. 3(1)(a)(b), Communications Act), references to “citizens” throughout the Act are few.  Rather than protecting the interest of the public, the current framework proves favourable to commercial interests. Is there any room left for citizenship interests?  The current framework associates citizenship-related concerns with content regulation.  Regulation of the infrastructure in digital television cannot be limited merely to economic issues.  It needs to accommodate citizenship-related concerns such as pluralism and diversity in the communications sector.  Unfortunately, we are witnessing the gradual transformation of the public from active citizens into passive consumers.

5 Conclusion The 2003 Communications Act remedied only the technical flaws of the previous system for regulating bottlenecks in digital television. Still lack of sufficient protection for the “public policy” dimension of the bottlenecks challenge. In relation to access and interoperability issues, the Act generally refers to the public by using impersonal terms such as “consumers”, “customers” or “end users”. In this era of rapid technological advances where the regulatory realm became dominated by market-related interests, it is legitimate to question: when did we stop being citizens?