5.
The institutional environment
In a number of OECD countries there has traditionally been a distinction between broadcast regulators
and telecommunication regulators. In some countries, even though there may be a single regulatory body,
there are distinct legal frameworks for broadcasting, cable television and telecommunications. Significant
regulatory changes have already affected the telecommunication sector, and while changes have been made
in broadcast regulation they have not been in the amplitude of those in telecommunications. Broadcast
regulators have, in general, been more cautious in opening up the market to increased competition even
though this competition has emerged from telecommunication networks and the Internet.
The implications of convergence on regulatory institutions has focused on whether separate bodies
should merge into one, and whether there should be two regulators, one for content and one for carriage.
There are a number of issues that need to be taken into account to determine the appropriate regulatory
structures. It is important for industry to have coherence which is easier to achieve through a single
regulator. Content and carriage are not independent and with convergence it is necessary to take into
account a much broader view of the market, market entry possibilities and how these developments impact
on plurality in the content market. Minimising the number of regulators that an enterprise needs to deal
with is also important in order to minimise regulatory costs, and reduce the potential for uncertainty and
inconsistency.
The area of spectrum allocation is one of particular importance to the broadcasting and
telecommunication sector – a single regulator is better placed to assess the cost and benefits of different
allocation proposals across the industry rather than separate regulatory bodies who often are more
concerned in ‘protecting’ their part of the industry than they are with the wider question of increasing
overall spectrum efficiency. In some countries broadcasters need two licences, one to operate the carriage
network including spectrum and one to operate a broadcasting content service. Concern has been
expressed that with a single regulatory body, issues of culture would come secondary to arguments on
efficient market mechanisms and competition. The UK experience is helpful here where a Content Board
with a wide membership was created which works within OFCOM, but is to some extent separate from
OFCOM.
Regulators in broadcasting and telecommunication have had an important role in regulating dominant
market positions. Convergence is changing the definition of the market which has implication for
decisions on dominance depending on how broadly the market is defined. Convergence is also leading to
the creation of new and emerging markets which produces another set of difficulties in defining the market.
Convergence may also lead to more vertical integration, for example, through mergers and commercial
agreements between owners of delivery platforms and content providers which will mean that some
decisions concerning the regulation of carriage will have an impact on the provision of content and vice
versa. Network operators able to deny access to competitors (or impose delays or unreasonable conditions)
DSTI/ICCP/CISP(2007)2/FINAL
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can create substantial barriers to entry and reduce competition. When the network operator is a vertically
integrated enterprise with interests in the provision of content services, the concern about the potential for
anticompetitive behaviour is heightened.
Convergence driven by NGN is clearly increasing the need for better horizontal co-ordination in
regulation of the communications sector widely defined. It is especially important in the field of spectrum
management and carriage regulation to establish efficient resource management, to avoid market distortion
and to improve competition between infrastructures. A single regulatory authority would be best placed to
bring about the necessary market efficiencies which could be achieved through convergence.
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