European Spectrum Management

By | January 1, 2012 | Telecom, Via Satellite

If all goes right, Europe’s new multi-annual spectrum policy should be put into place in the next few months. The Radio Spectrum Policy Program (RSPP) covers all use of spectrum, with satellite mentioned several times.

This RSPP was first proposed by the European Commission in September 2010. It is styled as a “multi-annual program” to set out policy orientations and objectives for spectrum management in the European Union (EU) during the period up to 2015. As a legislative item that requires approval by both the European Parliament and the Council, a compromise was needed to accommodate their many different views, which required more time than was originally foreseen. The Council of the EU represents the member states, which were not necessarily eager to move more authority over spectrum management from national regulators to Brussels.

This column first wrote about the RSPP in April 2011, when it was anticipated that approval would come relatively swiftly. Such was not to be, however, as there were too many tricky issues to cover. A compromise was finally reached in the last week of October 2011, and a plenary vote in the Parliament has been scheduled for February 2012. After the vote, the RSPP will be published in the EU Official Journal and enter into force 20 days following the publication.

Some of the principles in the RSPP are quite broad, such as a list of regulatory remedies that can be applied to ensure competition (Article 5). Others are quite specific, such as a requirement to identify at least 1200 MHz of spectrum by 2015 for wireless data, including spectrum already in use (Article 3(b)), and a deadline of January 1, 2013, for EU Member States to authorize new services in the 800 MHz digital dividend band (Article 6(4)).

The RSPP says at the outset that spectrum is a “key public resource for essential sectors and services” — satellite communications is mentioned as one of these sectors.

A substantial theme throughout the RSPP is fostering wireless broadband, which is a major goal of European policymakers. The satellite sector has been concerned that this emphasis should not focus solely on terrestrial solutions. A good statement in the recitals to the RSPP recognizes that satellite broadband access can be a “fast and feasible solution” to complement terrestrial broadband services and ensure coverage of the most remote EU areas.

Article 6 of the RSPP specifically covers wireless broadband communications and, again, there is a specific provision on satellite usage. There was a lot of debate, compromise and arm-twisting regarding the precise language, which resulted in a provision that EU member states “may explore the availability of sufficient spectrum for the provision of broadband satellite services enabling Internet access.”

A stronger statement on satellite services is contained in the next Article 7 on spectrum needs for other wireless communications policies. There, the member states are supposed to work with the European Commission to “aim at ensuring sufficient spectrum availability for satellite and terrestrial provision of such services, provided the need is clearly substantiated.”

The satellite sector, as much and probably more than others, depends on international rules for spectrum management, most notably the International Telecommunication Union radio regulations and other measures. One article of the RSPP focuses on international negotiations, where some delicate negotiations were needed to describe the authority of the EU to participate in addition to or in place of the national regulators that have traditionally been responsible.

The resulting language essentially echoes provisions of the existing EU treaty by maintaining that if the subject matter of the negotiations falls into EU competence, then the EU position will be established in accordance with EU law. This is nothing new — it restates general principle. If the subject matter falls into both EU and member state competence, which is going to be the case most of the time, they both must seek to establish a common position.

An interesting aspect of this same Article 10 is a provision that the EU will support efforts by other countries outside the EU to implement spectrum management that is compatible with EU policies, in an effort to “safeguard” the EU’s spectrum objectives.

We should see final action on the RSPP within the next few months. Barring any mix-ups, Europe will have a detailed statement of policy for spectrum management in place soon.

Gerry Oberst is a partner in the Hogan Lovells Brussels office.

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