EC electronic communications regulation advanced course

Transcription

1 Master in Public Policy Media Stream (Spring Term) EC electronic communications regulation advanced course Dr. Szabolcs Koppányi, LL.M. Central European University, Budapest Centre for Infocommunications Laws Institute for Legal Studies Hungarian Academy of Sciences 1. Course description Electronic communications is one of the most harmonised sectors within the European Union, and it serves as a basis for the regulation of other liberalised networks (energy, railways), too. It is a complex mix of legal, regulatory and policy measures serving as the framework for the fastest growing economic sector of the world. A basic aim of the liberalization procedure in electronic communications was to abolish exclusive and special rights in the sector. In the majority of European countries this procedure was strongly connected with issues relating to ownership and public control. Another achievement of the liberalization process was the elimination of regulatory barriers to market entry by making authorization of electronic communications networks and services easier and less bureaucratic. This in depth course is intended to provide participants with a thorough understanding of EC legislation in the area of electronic communications regulation. The interactive sessions will introduce students to more complex issues of transmission regulation, instruments and actors in the communications arena. We will explore what are the aims, tools and applied methodologies behind market analysis, the definition of significant market power and what are the limits of market regulation. We will analyse how and whether the consumer will benefit from state legislation and what is the rationale behind the concept of universal service. Concerning the future we will assess new challenges in technology, society (convergence, multisector integration) and law (review of the EC electronic communications framework). Finally, we will consider EU strategies to influence national policies and assess their impact. Among the key issues to be covered are: digitalization, convergence, market analysis, significant market power, remedies in market regulation, access and interconnection, universal service, dispute resolution and judicial review of regulatory decisions, data protection, spam, harmonisation and international telecoms regulation. Guest Lectures by experts from national regulators and visiting professors are planned as a complement to the seminars. Method The course consists of 12 seminars, each 1 hour and 40 minutes long, offering a mix of lectures, tutorials, class discussions (on the basis of a reading list) and guest lectures by 1

2 experts from national regulators and visiting professors from leading European research institutes. By the end of the course students will have good command of EU regulatory policy in the electronic communications sector. Students will be expected to provide oral presentation and to write a test and a term paper on one of the issues covered in the course. Szabolcs Koppányi is the CEU faculty member coordinating this course. He will be teaching most of the classes and bridge different topics taught by visiting faculty. He is also in charge of course requirements, assignments, and grading. 3. Schedule The classes are scheduled on Thursdays, beginning at sharp, except on the 14 th March, 2007 (Wednesday) at In order to prepare the modules and facilitate the discussions, a reader will be provided at the beginning of the course and guiding questions or short assignments will be provided to the students at the end of each class. 4. Requirements Active Participation: The course is designed to help students to critically engage with debates about electronic communications regulation and institutions. All students are expected to complete the required reading for each seminar and to participate actively in the seminar discussions. Presentation: Students will be asked to give a short presentation (of approximately 10 minutes) on one of the topics presented in the various modules. This can be partly based on the required readings for the day and/or other materials that are relevant to the session topic. Test: Students must complete a test around halftime, measuring their command on the course topic. The test will cover the issues discussed on the class and the compulsory reading. Passing the test is a prerequisite for the completion of the course together with the essay and the presentation. Essay: Students must write a final seminar paper of 5,000 words, excluding bibliography. The paper can build upon one of the presentations given by the student in the course. Indicative paper and presentation topics will be distributed in the first week. The essay has to be submitted during the last week of the Spring term. 5. Grading The final grade will combine class participation (25%), students presentations and test (35%) and the written final essay (40%). 2

3 6. Course Agenda 11 th January, 2007, Thursday Seminar 1: Introduction: Regulation of network economies Transmission on networks has emerged as a new body of law over the recent years. Liberalisation and market opening in network industries like telecommunications, electricity, gas, railways, water raised several similar regulatory issues over the last years, which may help to understand the distinctive features of networks the existence of different regulatory models and their impacts on regulation and regulators. This introduction helps to understand the main driving forces behind electronic communications. Nicolaides, Phedon: Regulation of liberalised markets: A new role for the State? (or How to Induce Competition Among Regulators), in: Regulation through Agencies in the EU ed. Geradin, D Munoz, R Petit, N, Edward Elgar Publishing Ltd., th January, 2007, Thursday Seminar 2: The EC regulatory framework on electronic communications Principles and General Rules Applicable Throughout the Framework, Institutional Issues With the entry into force of the new single EC regulatory framework on electronic communications (in the following NRF ) in 2003 a completely new regulatory structure has been set up. Due to the number of cross references and the complexity of issues in the NRF it is very important to analyse the NRF as a whole and getting into details only subsequently. The seminar is dedicated to give an overall understanding of the NRF while taking into account the introduction made in the Fundamentals of Media and Communications Policy Course. In order to provide a thorough understanding of the regulatory framework it is elementary to know how to interpret the regulatory principles. The principles stated in Art. 8 Framework Directive are not only guidelines for interpretation, they may well be used as a basis for regulatory intervention, which is quite a new phenomenon in CEE legal systems. Based on the introduction made in the Fundamentals course we will illustrate through practical examples how these principles are used in regulation. Effective regulation and its institutional materialisation are the focal points of the electronic communications. The national regulatory authority, its competences, institutional structure and regulatory tools are the fundamentals of the regulatory work. We will see how it works in the practice. 3

4 Nihoul, P. Rodford, P.: EU Electronic Communications Law Competition Oxford University Press, pp Maxwell, W. (ed.): Electronic Communications: The New EU Framework, Booklet I.1 The Framework Directive, New York 2002, Oceana Publications, pp Nihoul, P. Rodford, P.: EU Electronic Communications Law Competition Oxford University Press, pp Maxwell, W. (ed.):electronic Communications: The New EU Framework, Booklet I.2 The Authorisation Directive, New York 2002, Oceana Publications, pp Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services [Framework Directive] 25 th January, 2007, Thursday Seminar 3: Market regulation I. The regulation of electronic communications markets is the focal point of the NRF. The task of the regulator is to manually ensure competitive market conditions in a proactive manner in markets where competition is still not fully sustainable. It is a very complex regulatory task having significant influence on overall market developments. Market regulation is based on the concept of significant market power (in the following SMP ), a concept which is a set of different competition law based sector specific regulatory instruments. This seminar aims at introducing in the concept and regulatory environment of SMP, techniques of market definition, market analysis and the supranational consultation procedure, the Art. 7 procedure. Duvernoy, C. Desmedt, A.: One Year with the Electronic Communications Regulatory Framework: a Report on the Results of the article 7 Notification Procedure. C.T.L.R. (2005) Issue 3, pp Commission Guidelines on market analysis and assessment of significant market power under the Community regulatory framework for electronic communications networks and services. Commission Recommendation 2003/311/EC of 11 February 2003 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of 4

5 the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services. Tarrant, A.: Significant market power and dominance in the regulation of the telecommunications. E.C.L.R. (2000), Issue 7. 1 st February, 2007, Thursday Seminar 4: Market regulation II. The second seminar on market regulation deals primarily with the last step of market regulation, the imposition of remedies by the regulatory authority. Other interesting questions may be the case and scope of regulatory intervention, differentiation between applicable remedies, the interplay between different institutions etc. Case study: Analysis of NRA 1 decisions on SMP (Guest speeker NHH the Hungarian NRA to be confirmed) Cawley, R. A.: The new approach to economic regulation in the electronic communications sector in Europe: the application of regulatory remedies. Journal of Network Economies, Volume 5 (2004), No. 1, pp ERG Common Position on the approach to appropriate remedies in the new regulatory framework. Available at: n.pdf Geradin, D. (ed.): Remedies in Network Industries: EC Competition Law vs. Sector Specific Regulation. Antwerp Oxford 2004, Intersentia. 8 th February, 2007, Thursday Seminar 5: Access and interconnection The seminar concentrates on specific aspects of access and interconnection in electronic communications markets, such as the rights and obligations of different market players, colocation, facility sharing, reference offers, competences of NRAs etc. 1 National Regulatory Authority. 5

6 Maxwell, W. (ed.):electronic Communications: The New EU Framework, Booklet I.3 The Access Directive, New York 2002, Oceana Publications, pp Koenig, C. Bartosch, A. Braun, J. D.: EC Competition and Telecommunications Law. The Hague London New York, 2002, Kluwer Law International. pp th February, 2007, Thursday Seminar 6: Universal service, Public Service and Services of General Interest One main reason of maintaining monopolies in telecommunications markets was that certain public interest objectives had to be met by the monopolist operator. The concept of universal service was established in order to ensure these public interest goals in a competitive environment. The seminar aims at clarifying the scope and the means of validating public interest objectives in electronic communications. Nihoul, P. Rodford, P.: EU Electronic Communications Law Competition Oxford University Press, pp Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services [Universal Service Directive] 22 nd February, 2007, Thursday Seminar 7: Litigation, Dispute Resolution, Administrative Review, Consumer protection The characteristics of electronic communications, the continuous need to get interconnected, extensive market regulation and the validation of public interest objectives create several conflict situations, between the market players, the market players and the NRA, the market players and the users etc. The need to resolve the above mentioned conflict situations a wide range of methods and procedures were elaborated. The aim of the seminar is to give an overview about the different procedures available. 6

7 Nihoul, P. Rodford, P.: EU Electronic Communications Law Competition Oxford University Press, pp Andenas, M. Zleptnig, S.: Telecommunications Dispute Resolution: Procedure and Effectiveness, E.B.L.R. (2004) pp Brisby, P.: Dispute Resolution in Telecoms The Regulatory Perspective. C.T.L.R. (2005) pp st March, 2007, Thursday Seminar 8: Specific issues: Cable regulation, mobile, Spectrum Policy, VOIP, emerging markets Specific areas of electronic communications require special attention due to their characteristics. Electronic communication services provided via cable is emerging as a serious competitor to fixed telephony and broadband internet. The mobile sector, due to the complexity and high economic value of the mobile sector is emerging as a divergent sector that is however providing almost all sorts of electronic communications services via mobile network. Frequency management is a core question in the development of communications. Since frequencies are scarce resources the number of market players is limited. Due to the technological development new ways of communication are emerging. These emerging markets need sometimes specific regulatory treatment. Nihoul, P. Rodford, P.: EU Electronic Communications Law Competition Oxford University Press, pp , Koenig, C. Bartosch, A. Braun, J. D.: EC Competition and Telecommunications Law. The Hague London New York, 2002, Kluwer Law International. pp th March, 2007, Thursday Seminar 9: Data protection issues (Guest speaker: Eleni Costa ICRI) One basic function of electronic communications is to transfer information from one point to another, which involves a series of data protection issues. The seminar is intended to deal with issues like data retention, spam, location information etc. 7

8 Koenig, C. Bartosch, A. Braun, J. D.: EC Competition and Telecommunications Law. The Hague London New York, 2002, Kluwer Law International. pp Koppányi, Szabolcs: La directive vie privée et communication électroniques, L observateur de Bruxelles No December, pp th March, 2007, Wednesday Seminar 10: Test and presentations The test will cover the issues discussed on the class and the compulsory reading. Passing the test is a prerequisite for the completion of the course together with the essay and the presentation. 22 nd March, 2007, Thursday Seminar 11: Review of the EC Framework, International Regulation (Guest lecture: Prof. Pierre Larouche, TILEC to be confirmed) There is currently a review of the electronic communications regulatory framework taking place, which is due to be finished by 2009, probably. The outcome of the review procedure will significantly influence the regulation of the whole information society. Besides EC regulation other international regimes such as the ITU or WTO GATS play a role in telecommunications regulation. Although the NRF has been harmonized with the international commitments it remains the task of each state to enter and to change their international commitments. Koenig, C. Bartosch, A. Braun, J. D.: EC Competition and Telecommunications Law. The Hague London New York, 2002, Kluwer Law International. pp th March, 2007, Thursday Seminar 12. Harmonization issues (Guest lecture: Dr. Robert Queck CRID Namur to be confirmed) 8

9 The numerous infringement procedures initiated recently by the European Commission for non implementation of the NRF show the complex problems of harmonisation the member states are faced with. The breach of community law gives rise to claims for damages and it involves both the member states and the market players. In order to ensure continuity with the previous framework one important element of implementation was the transition from the old to the new framework. Due to the long time span between the implementation of the NRF and the results of the first market analysis under the new rules these transitional measures may significantly influence market development. Reading materials : To be provided 9