Gerry Oberst is a partner in the Brussels office of leading law firm Hogan & Hartson. During his 17 years in Brussels he has participated in numerous CEPT and European Commission activities related to radio spectrum and regulation of electronic communications. The views in this article are his own and not based on client or law firm positions.

The global shift towards digital broadcasting is supposed to free up radio spectrum resources because efficient digital transmissions take up less spectrum than traditional analog technology. The question of who gets to use this so-called “digital dividend” (in the UHF 470-862 MHz band) is creating policy and technical controversy, as major industry players seek to snare the newly available spectrum. The ongoing technical work among European spectrum managers on how to use the dividend has dug up so many technical hurdles that final parameters could linger until shortly before the 2012 goal to turn off the last of Europe’s analog television transmissions.

Europe has a special challenge of seeking to coordinate the spectrum demands across its many national boundaries. Decisions require a large degree of coordination by regulators across markets because radio waves do not stop at national borders.

There is general recognition that resolving the technical issues is key to unlocking the dividend for new services. France’s government commission on the digital dividend made this point clearly in a report issued in the first quarter of 2008, when it said that the switchover from analog to digital transmissions does not automatically create new opportunities. Instead, the only way to create a dividend is to adopt a definitive frequency plan that best reconciles the needs of the different potential users.

This will not be an easy job. Legacy broadcasters want to keep the spectrum they have traditionally used to provide new services; wireless broadband and mobile telephone providers want new spectrum wherever they can get it; and both sectors are searching for new mobile broadcasting opportunities. Meanwhile, conservative spectrum managers have a difficult time reconciling different national views on how to co-ordinate the frequencies and work out the technical details.

Plans and constraints

There are some basic constraints on how to use the digital dividend. The new digital television broadcasting channels were organized for Europe in an international conference held in Geneva in 2006. The resulting “GE-06” plan allotted the bands to permit reception of up to 7 or 8 channels in most regions, each capable of supporting a multiplex of programming. The channels were carefully planned to prevent interference, with the result that in certain countries some television channels will not be used for broadcasting, but instead will be used for services such as aeronautical radionavigation or fixed services.

Another constraint is that the most recent regional world radio conference allocated the upper part of the UHF spectrum in Europe to mobile services from the year 2015. Some European countries could use the band earlier as long as the use is technically co-ordinated.

Nobody wants to return to an international conference that takes years of effort and involves countries outside Europe. Thus the GE-06 plan is more or less fixed in stone. Nevertheless, European regulators will be rearranging some of the GE-06 bands with their neighbors for years, through bilateral or limited multilateral co-ordination to increase their available channels. These efforts will create a trail of uncertainty irrespective of digital dividend considerations. The experts say that the digital dividend’s technical issues should be included in these efforts to avoid duplication.

Trying to cut through the technical issues, the European Commission has taken two tacks. First, it issued a policy communication in November last year, proposing a harmonized “clustering” approach to create harmonized bands for mobile television, wireless access and other services while leaving broadcasting spectrum to national management. Second, it issued so-called mandates to the Conference of European Postal and Telecommunications Administrations (CEPT) to examine the technical details. It is not obvious, however, that the answers coming from the technical side are consistent with the Commission’s high level concept of clustering services into defined -- and mandatory -- bands.

Harmonization is feasible

The first mandate, issued in January 2007, called for an overall analysis of the digital dividend. The CEPT has already issued two lengthy reports plus an update, with a third report pending. The basic message of these reports is that harmonization is feasible, but only if it is not mandatory and individual member states are given flexibility to negotiate with their neighbors. A harmonized approach that is not mandatory is the standard CEPT modus operandi but this often results in delays, because some administrations do not implement “non-binding” decisions.

In its pending third report to the mandate, the CEPT has reviewed how to permit new services to use gaps between the assigned channels. These gaps are called “white spaces,” which vary over time and may only be available in limited areas. Traditionally these frequencies have been used by broadcasters for wireless microphones, short range transmissions connected with special events and other “program making” services (under the general acronym of PMSE). In addition to accommodating the PSME crowd, the CEPT focused on new approaches including short range personal devices, such as WiFi cards in laptops computers and “cognitive radio” techniques based on equipment that would sniff out unused frequencies and only operate when no interference is possible. The CEPT report (presently still in draft) depends on a substantial level of national flexibility.

Technical considerations

The technical beat still goes on. In April this year, the European Commission adopted a second mandate on technical considerations, calling for final reports into technical conditions by June 2009, channeling arrangements and how best to protect the PMSE services. This last point shows the continuing strength of the broadcasters, whose ancillary services are elevated in this second phase to a major topic.

The CEPT body working on these issues has scheduled meetings to the middle of 2009. However this schedule does not signal the end of the technical considerations because the CEPT has already developed a “technical roadmap” for relevant options and scenarios, which on its face seems to require work beyond the June deadline.

Reconciling the aim of the European Commission to harmonize the bands with the approach of CEPT spectrum managers to adopt non-mandatory structures is the task ahead. We do not expect to see an early resolution. Broadcasters are still fighting a rearguard action to preserve all their spectrum birthrights while mobile operators warn that the US is already reassigning channels. Countries such as the UK that are more advanced on the digital trail are itching to get on with the process. Others may not even make the 2012 deadline for the analog cutoff. On the policy side there is a sense of urgency, but the technical roadmap is still long and challenging.