Interview with Evelyne Lentzen: chairman of the CSA of the French Community of Belgium

Communications & Strategies, April, 2006 by Remy Le Champion

C&S: Does a homogenous model for regulatory bodies exist in Europe?

Evelyne LENTZEN: The first regulatory bodies for broadcast content were founded in the mid 1980s, on the morrow of the growth of private radio and television stations and the collapse of public broadcasting monopolies. The parliaments and governments of European countries subsequently decided that it would be appropriate to entrust the monitoring--including the implementation of rules set by the legislator--of a sector situated at the crossroads of human rights and fundamental freedoms to an autonomous body (independent of political and economic powers). In many cases the structure of the administrative authority was selected. Although the exercise of these functions is far from homogenous and in some cases, limited, these authorities all share the power to award authorizations licenses, to monitor broadcasters' respect of legal conditions and to impose sanctions in cases where obligations are not fulfilled. Luxemburg is an exception to this rule.

There are currently over one hundred regulatory bodies worldwide. It goes without saying that they are not all the same. Their internal structure, the way that their authorities and staff are appointed, their financial and human resources, as well as their various competences differ according to how they fit in with existing state structures, the administrative practices of these states, market structures, the political choices of parliaments and governments etc. Most regulatory authorities regulate both the public and the private sectors, but this is not the case with all bodies. The German Landesmedienanstalten, for example, are only competent in private broadcasting.

Diversity is consequently a fact in the world of regulation.

C&S: Would it be desirable to have just one regulatory body and what would such an organisation look like?

EL: The regulatory authorities form part of the history of each democratic state. It would be vain to hope that the logic of the unitary State, for example, could be imposed on a federal State or vice-versa.

C&S: In some countries, like the United Kingdom and Italy, a single body is responsible for all of the electronic communication sectors, whereas in others a clear line is drawn between telecommunications and audiovisual regulation. Is this distinction likely to continue in the age of convergence?

EL: There are all types of configurations: from the coexistence of several bodies for broadcast content to the so-called "convergent" regulator.

A "convergent" regulator with a varying range of competences covering both the audiovisual and telecommunications sector is not necessarily a "sole" regulator.

The number of regulatory bodies with joint content-infrastructure competences has been rising for several years. This is more or less the case in at least eight countries in Europe (Belgium, Bosnia-Herzegovina, Spain, Finland, Great Britain, Italy, Switzerland and Slovenia).

National, traditional circumstances play a key role. There was, for example, no regulatory authority for telecommunications before the Italian AGCOM was founded.

Structural simplifications, consisting of merging several authorities into a single body, have also been undertaken in Austria, Belgium (the Flemish community), Ireland, Norway and Switzerland, for example.

It was acknowledged at the EPRA (European Platform of Regulatory Authority) that the creation of a single or convergent body for telecommunications and audiovisual did not necessarily go hand in hand with a convergent vision of communication regulation. Internal decision-making structures provide some indication of this AGCOM has, for example, two commissions that deal with infrastructures-networks and services-products separately.

The advantages and drawbacks of "convergent" regulatory authorities, or even single bodies, are often discussed. It is worth remembering that the cultures and public interests in the audiovisual and telecoms sectors industries differ significantly. This is undoubtedly where the greatest difficulty lies (not to merely regulate content with the economic rules applied to infrastructures). In several countries another difficulty also undoubtedly lies in the level of political independence of telecommunications regulatory bodies, which is generally lower than that of audiovisual regulators.

The case of the federal States opens up another perspective, namely that of cooperation.

As a result, the Belgian audiovisual regulatory authorities are organised at the community (regional) level, competent in questions of culture, while the telecommunications regulatory authority has been created at the national level. At a first glance, this would consequently appear to represent a content-infrastructure breakdown. However, the laws of the French-speaking community, for example, have granted competences in terms of infrastructures to the regulator, namely the Conseil superieur de l'audiovisuel. In fact the "Cour d'arbitrage" (constitutional court) has always considered the competences of Belgium's communities in terms of broadcasting and television, are "Not to be linked to a specific form of broadcasting or transmission. It enables the communities to regulate the technical aspects of transmission that are an accessory to the field of broadcasting and television. Responsibility for regulating other aspects of the infrastructure, notably including the waves policing, falls to the federal legislator." It has also stated that, "Recent technological developments have meant that the fields of broadcasting and television on the one hand, and telecommunications on the other, can no longer be defined according to technical criteria such as the underlying infrastructure, the networks or the terminals used, but naturally according to content-related and functional criteria," and that "Broadcasting that includes television can be distinguished from other forms of telecommunications insofar as a broadcast programme distributes public information that is destined, from the broadcaster's point of view, for all or part of its audience and is not of a confidential nature. Services that provide individualised information, on the other hand, characterised by a certain degree of confidentiality, do not come under the jurisdiction of broadcasting and are monitored by the federal legislator." The Court goes on to say that, "The main characteristic of broadcasting and television is that it provides public information to the entire audience [...], which also includes broadcasting at individual request. Broadcasting activities are not losing this feature just because a wider choice of programmes is offered to television viewers and audiences due to advances in technology." The Court concluded that the federal authority is not the only authority competent to regulate networks and electronic communications infrastructures, and that there is, "An absolute necessity to ensure that the federal authority and the communities cooperate" (1) to manage shared electronic communication infrastructures. The "Cour d'arbitrage" set a deadline for this cooperation, which has now expired, without any such cooperation being organised by the governments in question to-date.