Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Legal Framework for Mobile TV Networks and Services: Best Practice for Authorisation – The EU Model
Date: 2008-12-10
Institutions: European Commission
Subjects: communications systems, innovation, interactivity, legislation, television, trade regulations, trans-European network

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 10.12.2008 
COM(2008) 845 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Legal Framework for Mobile TV Networks and Services:  
Best Practice for Authorisation – The EU Model  

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 COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Legal Framework for Mobile TV Networks and Services:  
Best Practice for Authorisation – The EU Model 

1. 

BACKGROUND AND PURPOSE 

Following  the  strong  political  message  given  by  the  Commission  in  its  Communication  of 
18 July  2007  “Strengthening  the  Internal  Market  for  Mobile  TV”1,  this  Communication 
sets out some best practice examples from the Member States' regulatory approaches to mo-
bile TV networks and services. Although it is for the Member States and competent regulatory 
authorities  to  decide  upon  the  procedures  for  the  granting  of  authorisations  /  licences,  the 
Commission  is  keen  to  support  the  deployment  of  mobile  TV  in  the  EU  and  worldwide  by 
providing guidance on appropriate regulatory practice for the authorisation of such services. 
This represents an additional step in the Commission strategy for mobile TV in the European 
Union. 

Mobile  TV  is  a  new  service  platform  for  transmitting  audiovisual  content  –  and  associated 
interactive  services,  in  particular  in  association  with  3G  services  -  to  a  mobile  device.2  The 
2007 Communication indicated the main elements of a European strategy for mobile TV with 
a view to facilitating the take-up of these innovative services across the Union. One of the key 
elements  is  the  regulatory  environment.  Legal  certainty  is  paramount  for  operators  to  take 
investment decisions, especially with respect to new, innovative technologies such as mobile 
TV;  early  investors  in  particular  need  to  be  reassured  that  they  will  not  be  subject  to 
unforeseen  constraints  at  a  later  stage.  Other  elements  of  the  EU  strategy  include  the 
recognition that DVB-H will be the standard for terrestrial mobile TV in Europe (DVB-H was 
added to the list of official standards of the European Union on 17 March 20083), and the call 
for  frequencies  to  be  granted  to  mobile  TV  services  in  the  UHF  band4,  notably  on  the 
occasion  of  the  refarming  of  this  band  in  the  context  of  the  digital  dividend5.  On  the  other 
hand,  interoperability  concerns  still  need  to  be  tackled  by  industry  and  the  Commission's 
services will monitor developments closely and assess the need for a policy initiative. 

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COM(2007) 409, hereafter referred to as the "2007 Communication". 
There are several devices available for receiving Mobile TV, but the most common is the mobile phone. 
Commission Decision 2008/286/EC of 17 March 2008 amending Decision 2007/176/EC as regards the 
List of standards and/or specifications for electronic communications networks, services and associated 
facilities and services (OJ L 93, 4.4.2008, p. 24) 
Under the framework applicable to broadcast spectrum in the UHF band, Member States may not grant 
or  maintain  "exclusive  or  special  rights  of  use  of  radio  frequencies"  (Article  4  of  Directive 
2002/77/EC),  must  ensure  efficient  use  of  spectrum  (Article  8.2.d  of  the  Framework  Directive 
2002/21/EC), and must encourage effective competition (Article 8.1) without any undue discrimination 
(Article 8.3.c). Combined, those articles result in an obligation to allocate spectrum in an efficient way. 
Some  Member  States  such  as  France,  Italy  and  Austria  already  took  the  decision  to  allocate  UHF 
spectrum for mobile TV use and the majority of the remaining Member States plans to do so alike. 

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In addition, and as the success of mobile TV largely depends on content availability, the new 
Directive on Audiovisual Media Services6 adapts audiovisual content rules to the evolution of 
Europe's  audiovisual 
landscape  and  ensures  a  platform-neutral  approach  between 
broadcasting – including mobile broadcasting – and on-demand audiovisual media services. 

When  the  Commission  launched  its  mobile  TV  initiative,  only  some  Member  States  had 
started  addressing  regulatory  issues.  The  first  action  taken  by  the  Commission's  services 
aimed at clarifying the existing regulatory landscape in the EU via a study carried out for the 
Commission  by  independent  consultants.  The  information,  which  was  validated  by  the 
Committees  of  national  experts  established  under  the  e-communications  framework7,  is 
updated regularly and published on the Commission's website8. This fact-finding exercise has 
shown a high degree of variation in the way mobile TV has been treated in national law.  

After  clarifying  the  regulatory  situation,  the  Commission  in  its  2007  Communication  called 
upon  the  Member  States  to  put  in  place  a  favourable  regulatory  environment  for  the 
provision of mobile TV services and to coordinate with each other in order to exchange best 
practice in authorisation regimes. Furthermore, it committed itself to providing guidance on a 
coherent framework for authorisation  regimes across the EU, by identifying best practice in 
the  EU  and  promoting  adoption  by  the  Member  States.  This  was  endorsed  by  the 
Telecommunications Council's November 2007 conclusions on mobile TV, whereby it invited 
the Commission to go beyond a simple collection of information and “to identify best practice 
with  regard  to  the  authorisation  regimes  across  the  EU  and  promote  through  appropriate 
guidance their consistent adoption by the Member States”9. 

A stakeholders' consultation was organised in February 2008 in the context of the preparation 
of  these  guidelines.  This  included  a  Commission  workshop  for  the  industry,  at  which 
stakeholders were invited to submit written contributions. Two major industry associations10 
and several individual companies replied to the call for input. In addition, this issue has been 
presented  and  discussed  in  several  meetings  with  Member  State  representatives  in  the 
framework  of  the  Communications  Committee  and  its  broadcasting  experts'  sub-committee 
(CBISS). 

Mobile TV lies at the heart of convergence. This means that at EU level, mobile TV is sub-
ject  to  two  sets  of  rules,  governing  transmission  and  content:  the  e-communications  frame-
work, including aspects related to spectrum policy, and the new Audiovisual Media Services 
Directive.  This  Communication  addresses  authorisation  models  at  national  level  only  with 
reference  to  the  e-communications  aspects  of  national  regulatory  regimes,  and  does  not 
touch upon content licences. It summarises the main results of the fact-finding exercise and 
indicates best practice examples with regard to the main elements of the authorisation regimes 
for mobile TV. This is intended to serve as a basis for further discussion and exchange of best 
practice among national authorities. 

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Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 (OJ L 332, 
18.12.2007, p. 27). 
The  Communications  Committee  (COCOM)  and  its  subgroups  on  authorisation  (AUTH)  and 
broadcasting matters (CBISS).  
http://ec.europa.eu/information_society/policy/ecomm/doc/current/broadcasting/mobile_tv/ 
table_mobile_tv_auth_web_july08.pdf 
Council Conclusions - Strengthening the Internal Market for Mobile TV, 29 November 2007 
UMTS Forum and GSM Association Mobile TV Joint Work Group; BMCOforum 

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2. 

AUTHORISATION  OF  MOBILE  TV  NETWORKS  AND  SERVICES  ACROSS  THE  EU:  MAIN 
MODELS AND BEST PRACTICE 

Regulatory approaches to the authorisation of mobile TV networks and services vary consid-
erably across the EU. In several Member States, the general regime applying to broadcasting 
would implicitly or explicitly be extended to mobile TV broadcasting. In some others, there 
are no specific rules, or the regulatory framework for this new platform is still being debated. 
So far, there is little experience with broadcasting services using exclusively mobile transmis-
sion.  

As stated above, it is of paramount importance to avoid a legal vacuum or situations charac-
terised by a high degree of regulatory uncertainty at national level which would discourage 
investment and potential mobile TV operators in the Internal Market. Differences in national 
regimes  are  not  per  se  an  impediment  to  the  successful  launch  of  mobile  TV  services,  as 
regulation may need to cater for national or even local specificities. However, mobile TV is a 
wireless service and, as such, it has the potential to acquire a cross-border dimension in the 
future. From this perspective, authorisation regimes for mobile TV services should take into 
account the Internal Market dimension. The aim should be to strive for a level playing field 
allowing the various actors to compete under similar conditions. Consistency of regulatory 
approaches across the EU is needed in order to create a regulatory environment conducive 
to investment and innovation. 

Mobile TV regulation is constrained by the scarcity of spectrum and by the need to facilitate 
market  entry  to  all  players,  coming  from  both  the  broadcasting  and  the  telecommunications 
world. In the mobile TV value chain, several layers are combined, starting from the network 
operation,  service  platform  operation  and  content  provision,  to  the  distribution  chain. 
Currently, the most common practice is to assign spectrum to the platform operator or, 
more rarely, to the network operator. In this case it will act, in practice, also as the plat-
form  operator  or  it  may  sub-contract  this  activity.11  It  is  around  this  authorisation  regime  - 
defining rights and obligations of the licensed operator - that the regulatory models are built 
up.  

It is currently possible to identify the following three main regulatory models for the mobile 
TV market in Europe:  

One model is based on the extension of existing Digital Terrestrial Television (DTT) rules 
to new services, in an explicit or in an implicit manner (e.g. Italy, UK). Although this model 
presents  the  advantage  of  simplicity  and  swiftness  of  application,  a  specific  regime  for 
mobile  TV  should  be  provided  for  under  national  legislation;  the  simple  extension  of 
DTT rules could prove insufficient and/or inadequate after an initial period. 

A  second  model  is  the  “plain  wholesale  model”.  Since  the  regulation  is  focused  on  the 
wholesale  operator  which  plays  a  key  role  in  network  management,  spectrum  acquisition, 
licensing and optionally also content aggregation, this may lead to deadlock, as happened in 
the Finnish case, if the content providers do not have an incentive to make content available. 
The  network  operator  needs  also  to  apply  fair,  reasonable  and  non-discriminatory  terms  to 
mobile TV service providers present on its network. In addition, the “plain wholesale model” 
where  spectrum  is  attributed  to  a  single  operator  may  raise  concerns  under  the  Competition 

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It is only in Germany that a network operating licence was granted separately from the platform service 
licence.  

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Directive12,  in  particular  if  the  assignment  of  spectrum  is  made  without  an  open  and  fair 
procedure under non-discriminatory rules13.  

In  the  third  model,  the  “integrated  approach”,  all  players  in  the  mobile  TV  value  chain, 
including content providers, have to find an agreement on the services before the granting of 
authorisation  (e.g.  Austria).14  This  regulatory  model  presents  the  advantage  of  avoiding 
deadlocks  in  the  value  chain.  Vertical  integration  between  players  is  established  in  two 
ways: first, one of the selection criteria for the network/platform operator is the conclusion of 
agreements  with  programme-aggregators  and/or  broadcasters  to  ensure  a  feasible  business 
model; second, content providers need a regular licence for digital television, which is granted 
upon proof of contracts with the multiplex operator. 

Under this model, a coordinated timing of the start of commercial operations of all actors in 
the value chain can be ensured, provided that the rules set in place are coherent. This is why 
the  “integrated  approach”,  seems  to  be  particularly  suited  to  guarantee  the  successful 
launch of mobile TV service.  

Best  practice  guideline:  Any  new  authorisation  regime  for  mobile  TV  under 
national  law  should  aim  at  involving  the  different  actors  in  the  value  chain 
whilst ensuring compliance with EC and national competition rules. 

3. 

IDENTIFYING  REGULATORY  BEST  PRACTICE  AT  THE  VARIOUS  LEVELS  OF  THE 
REGULATORY REGIME 

In order to identify regulatory best practice for mobile TV, it is important to define the main 
elements  of  the  regulatory  regime  to  be  taken  into  account.  For  this  purpose,  the  following 
clusters have been identified: 

(1) 

General framework 

(2) 

Authorisation regimes 

(3) 

Award procedures 

(4) 

Specific aspects. 

This  conceptual  framework  was  discussed  with  the  Member  States  and  with  industry  repre-
sentatives  in  February  2008.  These  elements  have  then  been  assessed  keeping  in  mind  the 
objectives  of  regulation,  from  an  EU  perspective.  As  stated  in  the  2007  Communication, 
the  main  regulatory  objective  should  be  a  light  regulatory  regime,  enabling  the  launch  of 
mobile  TV  services  without  undue  impediments  and  delays.  No  unnecessary  obligations 
should  be  imposed  on  market  players.  At  the  same  time,  regulation  should  provide  for  the 
minimum requirements to be fulfilled in order to ensure efficient use of frequencies. 

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Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic 
communications networks and services (Text with EEA relevance), (OJ L 249, 17.9.2002, p. 21–26) 
See also article 5(2) of the Authorisation Directive 2002/20/EC (OJ L 108, 24.04.2002, p. 21). 
Privatfernsehgesetz  (PrTV-G)  [BGBl. I No 84/2001]  as  amended  by  BGBl.  I  No  52/2007,  Section  23 
paragraph (3) subparagraph 3. 

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3.1. 

General framework 

In countries where specific legislation will be adopted, but also in countries where the existing 
broadcasting rules apply for the time being to this new service platform, the main characteris-
tics of the general regulatory framework for mobile TV should be clarity, transparency and 
efficiency of procedures. A timely legislative process is also a major factor. If the regulation 
needs  to  be  completed  by  implementing  measures,  it  is  advisable  that  these  measures  be 
adopted  without  delay.  The  start  of  mobile  TV  services  should  not  be  held  up  because  the 
relevant legislation or implementing regulations are not adopted on time. 

It should also be recalled that actors in the mobile TV value chain come from different indus-
try sectors. It is therefore important that the authorisation process for this new service plat-
form is not restricted to one category of players, but is open to all economic operators that 
have the ability to comply with the minimum necessary requirements. 

Best practice guideline: Authorisation procedures should be open to all market 
players in order to ensure a level playing field for different actors in the mobile 
TV value chain.  

3.1.1.  Public consultation mechanism 

As mobile TV economic operators may have conflicting interests, mobile TV regulation needs 
to take into account their various concerns. Provision for public consultation mechanisms, 
before  the  adoption  of  any  specific  regulation  or  in  the  context  of  a  review  of  the  existing 
rules,  may  facilitate  the  tailoring  of  regulation  to  the  needs  of  the  market  and  secure  the 
compliance of market players with the new provisions. 

Best practice guideline: Public consultation of citizens and all interested parties 
should  be  organised  systematically,  in  parallel  with  commercial  trials  on,  inter 
alia,  the  opportunities  related  to  mobile  TV  deployment,  the  use  of  the  digital 
dividend for mobile TV services and the financing models.  

3.1.2.  Regular reporting and review 

Regulation for mobile TV services needs to be not only clear and transparent but also flexible 
and  fine-tuned  to  new  developments,  in  an  innovative,  fast-changing  technological  envi-
ronment. Associated with regular reporting by public authorities on market developments, the 
provision for a review clause, as set out in the French regime, is positive in this respect. Of 
course,  any  such  review,  possibly  resulting  from  market  reporting,  should  strike  a  good 
balance  between  the  pace  of  technological  and  market  change  and  the  need  to  ensure 
legal certainty for market players. 

Best  practice  guideline:  Regular  reporting  by  public  authorities  on  market 
developments  should  take  place,  together  with  appropriate  proposals  to  adapt 
existing rules. 

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3.2. 

Authorisation regimes 

3.2.1  Clear relationship between applicable rules 

Authorisation regimes are the core element of the regulatory environment for mobile TV. Due 
to the “convergent” nature of mobile TV, it is necessary to identify specifically the rights and 
obligations of the operators, as e-communications operators and as broadcasting providers. In 
this respect, it is important that the relationship between e-communications, spectrum and 
content aspects be clearly defined, in order to avoid regulatory ambiguity or overlapping. 

Best  practice guideline:  The  relationship between e-communications, spectrum 
and  content  rules  should  be  clearly  defined,  in  order  to  promote  a  clear  and 
transparent authorisation regime. 

3.2.2. 

"One-stop shopping" 

In the majority of Member States, the granting of authorisation for mobile TV falls under the 
competence of more than one authority – ministry and / or independent regulatory authority - 
due to the separation between e-communications and media aspects. Whether the regulator 
is converged or not, it is important that a clear and coherent sharing of responsibilities is 
established.  

“One-stop  shopping”,  whereby  operators  have  a  single  contact  point  to  deal  with  for 
different types of authorisation, is considered by the majority of market players as best prac-
tice, provided that the principles of pluralism and cultural diversity are respected. The advan-
tage  of  this  procedure  stems  from  administrative  simplification  and  coordinated  timing,  in 
cases where multiple clearance is needed. 

Best  practice  guideline:  The  national  regime  for  mobile  TV  should  ensure  a 
"one-stop-shop"  approach  or  at  least  limit  to  the  minimum  the  number  of 
public players in decisions to grant mobile TV authorisations. In Member States 
with a sub-national authorisation level, a similar or coordinated procedure for 
all  federal/regional  bodies  should  be  put  in  place.  "One-stop  shopping"  is  of 
particular importance when multiple clearance is required. 

3.3.  Award procedures  

Time is a key factor for the EU as a whole in terms of competitiveness in the global market-
place.  For  the  quick  launch  of  mobile  TV  in  all  Member  States,  a  key  to  success  is  a clear 
schedule for the award procedure which is public, transparent and defined in advance.  

Best  practice  guideline:  A  clear  schedule  for  the  award  procedure  should  be 
announced  no  later  than  the  start  of  the  commercial  trials  of  mobile  TV 
services.  

3.3.1.  Award type and criteria 

Auctions  and  beauty  contests  are  two  alternative  ways  for  national  authorities  to  grant  au-
thorisations.  Until  now,  beauty  contests  have  tended  to  be  used  to  assign  the  platform 
authorisation.  Award  criteria  are  an  important  tool  at  the  disposal  of  national  authorities  to 

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ensure that services provided will comply with certain requirements, which are the guarantee 
of an efficient use of spectrum dedicated to mobile TV. 

The  award  procedure  should  also  secure  the  timely  start  of  mobile  TV  operations.  Certain 
conditions  could  be  used  to  minimise  the  risk  of  a  deadlock,  e.g.  between  platform 
operators,  content  providers  and  mobile  operators.  Requirements  for  applicants  may 
therefore  include  agreements  between  the  different  players  in  the  value  chain,  subject  to 
compliance with competition rules.  

In terms of specific award criteria, it is worth stressing the importance of quality of service, 
which plays a key role in terms of consumers’ expectations for mobile TV, in particular with 
reference to indoor coverage and transmission quality.  

Best  practice  guideline:  Objective,  transparent  and  non-discriminatory  award 
criteria  should  be  applied,  in  conformity  with  Community  law.  Award 
procedures  should  encourage  a  collaborative  approach  between  the  players, 
subject  to  compliance  with  competition  rules.  Requirements  for  quality  of 
service,  including  indoor  coverage,  and  optimal  use  of  the  spectrum  should  be 
part of the award conditions. 

3.3.2.  Other conditions of award 

In most of the Member States, a single multiplex  is or will be dedicated to mobile TV – in 
France,  the  ongoing  discussion  opens  the  way  to  two  multiplexes,  on  frequencies  from  the 
digital dividend, e.g. frequencies freed by analogue switch-off. In order to prevent spectrum 
hoarding, regulation may include a provision for a maximum period of inactivity.  

Best  practice  guideline:  The  possibility  of  withdrawing  spectrum  awarded  for 
mobile  TV  that  is  not  put  to  use  within  a  reasonable  time  period  should  be 
included in the award conditions.  

3.4. 

Specific aspects  

At this early stage of development of the market, it would appear desirable that any specific 
conditions attached to authorisations are appropriate and avoid imposing unnecessary burdens 
on operators. 

3.4.1.  “Must-carry” rules  

In accordance with European legislation15, “must-carry” obligations can only be imposed if a 
significant number of end-users of a network use it as their principal means to receive radio 
and television  broadcasts. At present,  mobile TV  is still  in its start-up phase; “must-carry” 
rules may not be imposed on mobile TV at this stage. At any rate, channels benefiting from 
must-carry are also often “must-have” channels, which actually increase the commercial value 
for the distribution services and are likely to be included in any main mobile TV bouquet. 

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Article  31,  Directive  2002/22/EC  of  the  European  Parliament  and  of  the  Council  of  7  March  2002, 
Universal Service Directive (OJ L 108, 24.4.2002, p. 51–77) 

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In  that  respect,  and  in  the  spirit  of  the  cooperative  approach  advocated  by  this 
Communication, national regulatory authorities could usefully envisage “must offer” rules for 
mobile TV as a nascent service needing attractive content. 

Best  practice  guideline:  A  discussion  on  “must  offer”  rules  for  mobile  TV 
services should be organised in every Member State and at EU level. 

3.4.2.  Network Infrastructure Sharing  

Network infrastructure sharing is an important element to minimise roll out costs and increase 
coverage and transmission capacity.16 As stated in the 2007 Communication, Member States 
may  consider  permitting  network  infrastructure  sharing17  and  encouraging  co-location 
when this is needed to facilitate network deployment. Co-location may also be imposed where 
necessary to address possible environmental concerns18. 

Best practice guideline: Network infrastructure sharing for mobile TV services 
should be encouraged, to the extent permitted by competition rules. 

3.4.3. 

Interoperability and roaming 

The objective of full interoperability across networks and devices remains important in order 
to make possible EU-wide roaming where appropriate, and interoperable solutions should be 
favoured. Developments in the market have shown that interoperability can be achieved when 
stakeholders  act  together  with  a  common  aim  of  implementing  a  technical  standard  such  as 
DVB-H. Efforts are currently being made in this respect in industrial and standardisation fora, 
notably focusing on the services and applications layers. 

Furthermore, the wireless nature of mobile TV means that consumers will legitimately expect 
devices  to  work  across  borders,  as  is  the  case  with  “roaming”  mobile  telephony.  EU-wide 
mobile  TV  roaming  is  likely  to  gain  importance  as  the  take-up  of  services  grows  across 
Europe.  It  should  also  be  recalled  that  some  cross-border  or  pan-European  channels  are 
already  available  today  and  can  provide  an  important  test-bed  for  future  pan-European 
services.19  The  launch  of  DVB-SH  based  mobile  satellite  TV  services  is  expected  for  next 
year in Europe. 

Best  practice  guideline:  Aspects  related  to  interoperability  and  roaming  for 
mobile TV should be given due consideration in light of the wireless nature of 
the services. 

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19 

A similar position is supported at the international level, for example at the 8th Global Symposium for 
Regulators on 13 March 2008, Pattaya, Thailand. 
Such  agreements  have  been  in  place  in  some  markets  in  the  context  of  GSM  and/or  UMTS 
infrastructure  and  exempted  by  the  Commission  under  the  EU  Competition  rules.  E.g.  Commission 
Decision of 16 July 2003 (Case COMP/38.369: T-Mobile Deutschland/O2 Germany: Network Sharing 
Rahmenvertrag - OJ L 75, 12.3.2004, p. 32) and Judgment of the CFI of 2 May 2006 (Case T-328/03). 
In line with Article 12 of the Directive 2002/21/EC of the European Parliament and of the Council of 7 
March 2002, Framework Directive (OJ L 108, 24.4.2002, p. 33–50) 
By way of example, Euronews, Arte, 3 Sat, Eurosport, France 24 and BBC World. 

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4. 

CONCLUSIONS AND FOLLOW-UP 

Clearly, regulatory best practice needs to be shared in order to be effective. In this context, 
the  Commission  will  continue  to  promote  the  exchange  of information,  experience  and  best 
practice between national administrations and other stakeholders. The information on mobile 
TV  regulation  submitted  by  the  Member  States  is  publicly  available  on  the  Commission's 
website20  and  will  continue  to  be  updated  regularly.  Exchanges  of  information  and  best 
practice  will  take  place  notably  through  the  existing  committees  of  Member  States'  experts, 
such  as  the  Communications  Committee  and  its  sub-committees  on  authorisation  and 
broadcasting.  The  Commission's  services  will  also  report  regularly  to  the  European 
Parliament and the Council's working parties on this issue. 

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Idem footnote 8 

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