European communications law and technological convergence : deregulation, re-gulation and regulatory convergence in television and telecommunications

Abstract

Technological convergence' is an expression depicting the blurring of boundaries between television and telecommunications. As a consequence of this process, the economic assumptions underlying legacy regulatory regimes no longer reflect market realities. Thus, technological convergence pushes for regulatory change, and this, in three directions: (i) deregulation, i.e. the removal of tools providing for exclusive and special rights; (ii) regulatory convergence, i.e. the creation of a level-playing-field between incumbents and new entrants and (iii) re-regulation, i.e. the introduction of new tools, either to replace legacy ones or to respond to emerging concerns. The first part of the dissertation examines the reaction to technological convergence in television and telecommunications regulation. While deregulation was unavoidable in both sectors, so pressing were technological developments, there are marked differences in other respects between them. Television regulation is an example of a 'defensive' reaction, in the sense that steps towards regulatory convergence and re-regulation have been slow and incremental. As a result, legislation is remarkably unstable and distortions, unavoidable. In addition, competition law has emerged as a source of regulation to deal with some concerns neglected in explicit regulatory regimes. In the telecommunications sector, by contrast, the Regulatory Framework for electronic communications constitutes an attempt to lay down, ex novo, a flexible and lasting regime. The second part examines choices around 'conflict points' between regimes, i.e. those areas of substantive overlap between the three sources of regulation identified above. Two conclusions follow from the analysis. First, it appears that one must differentiate, for normative purposes, between regulatory objectives (pluralism, effective competition, harmonisation...) and the specific tools through which these are implemented. In this sense, it seems feasible and justified to reconcile conflicting objectives across the value chain along the lines of tools that are more suited to apply in a changing environment. Secondly, it is noted that television and telecommunications activities are so inextricably linked that any attempt to regulate one of the two sectors in isolation from the other, as is currently the case, is artificial and unsustainable.