Telecommunications researcher Ewan Sutherland argues that the Scottish Government has thus far failed to address many of the key spectrum regulation issues necessary to support a thriving cultural industry if the referendum vote is a yes.

The Scottish Government claims last November’s White Paper answered all questions. However, in the areas of communications policy and regulation it raised many more questions than it answered. It also undermined its own assertions about the future growth of cultural industries, by creating significant regulatory uncertainty for spectrum holders. In particular, it lacked any explanation of the agencies and authorities that, from March 2016, would regulate:

• Advertising
• Broadcast content
• Gambling (including the present National Lottery)
• Newspapers
• Spectrum

This was further complicated by the draft Independence Bill in June, which includes a provision for a “continuity of laws” that would replicate all the existing United Kingdom laws and the associated institutions, presumably including OFCOM (see my comments).

Spectrum users require clarity about the future regulatory regime, about the policies and the type of agency that would implement the policies, and the system of appeals that would review its decisions. For example, is the agency to have a predominantly economic view or would it be more concerned with matters of culture and plurality?  Is the appellate body to be a general court or a specialist competition law body?

Honouring licences

The Scottish Government states  licences would be “honoured”, a term it does not explain.

Existing licences derive from UK statutes and are issued by the Office of Communications (OFCOM). The simple approach would be to convert UK statutes into Scottish statutes, perhaps renaming OFCOM as ScotCOM and the Competition Appeal Tribunal as ScotCAT. However, the Scottish Government has made it clear it does not like the present structure of OFCOM, which it proposes to break up, transferring its consumer and competition law powers to horizontal regulators (see Green Paper). It offers no explanation, aside from a couple of obscure phrases, as to how it would wish to regulate spectrum.

The simplest approach to the licences would be to split any that cover the United Kingdom, “grandfathering” the terms and conditions as far as possible. Thus the operator (e.g., Classic FM and Vodafone) would retain a United Kingdom and add a Scottish licence, with broadly similar terms.

There is no indication of whether the work would be undertaken as part of a new ministry, part of a new multi-sector regulator or a standalone agency, all of which are plausible and could comply with the applicable EU directives.

Transposing European Union directives

Given the changes to OFCOM proposed by the Scottish Government, it would seem very likely that primary legislation would be needed, either to revise the Communications Act or, more likely, to make a fresh transposition of the applicable EU directives to create an entirely new Scottish statute.

British Broadcasting Corporation

A further complication is that the BBC is addressed only in terms of its Royal Charter, which it is proposed to be allowed to continue until the end of 2016, though without explanation of the legal mechanisms. However, the BBC also holds a number of spectrum licences which, if honoured, might well leave little space for the proposed new Scottish Broadcasting Service.

Lord Birt has recently suggested that the proposed re-broadcasting of BBC programmes would not be possible, unless substantial payments were made. This would reduce the need for spectrum.

Consultations needed

Even seeking to minimise the changes in licences, it would be necessary to hold at least two consultations prior to independence, each taking about four months (one month to prepare, two months to solicit responses and one month to consider replies). Thus at least a skeleton spectrum agency would be needed in spring 2015, requiring job adverts to be placed in late 2014, together with a sufficient legal basis to enable the appointments and consultations. Documents would have to be prepared, including impact assessments, then the responses have would have to be weighed and replied to in the final decision. Even at the stage of consultations appeals have to be considered a possibility, requiring the creation of the appellate body.

One consultation cycle would be needed for the spectrum policy framework, while the second would be for individual licences. In parallel there would need to be consultations on the regulation of advertising codes and of broadcast content, presently undertaken by the Advertising Standards Authority (ASA) and the OFCOM Content Board.

Network governance

Representatives of the new ministry and whichever new agency was responsible would be expected to participate in spectrum discussions with OFCOM, for example, about interference on the land and sea borders. More widely, they would participate in the work of:

International Telecommunication Union (ITU) and

Conference of European Postal and Telecommunications Administrations (CEPT).

For example, Scottish representatives might need to attend, perhaps as part of a UK delegation, the ITU-R World Radio Conference in November 2015. Presuming membership of the European Union, there would also be an expectation of participation in:

Radio Spectrum Committee (RSC) and

Radio Spectrum Policy Group (RSPG).

It would be helpful to participate in the discussions about the report just given by Pascal Lamy from the High Level Group on Spectrum to the European Commission that recommended the recycling of the 700 MHz UHF band for mobile broadband.

Conclusion

If the aim of the Scottish Government is to boost cultural industries, then broadcasters and mobile network operators, need certainty about the availability of spectrum and about the terms and conditions for its use. It is now too late to revise the White Paper to set out how spectrum and related key issues are to be regulated, the Scottish Government therefore needs to proceed to publish its draft statutes and policies, and to prepare to recruit spectrum experts immediately after the referendum, should there be a yes vote.

A paper by the author on the full range of issues concerning Scottish independence was published in Telecommunications Policy. This post gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics.