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Regulating digitalbroadcasting in Europe: Thelimits of policy convergenceDavid A.L. LevyPublished online: 03 Dec 2007.

To cite this article: David A.L. Levy (1997) Regulating digital broadcasting inEurope: The limits of policy convergence, West European Politics, 20:4, 24-42,DOI: 10.1080/01402389708425216

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Regulating Digital Broadcasting in Europe:The Limits of Policy Convergence

DAVID. A. L. LEVY

In 1996-67 France, Germany and Britain overhauled theirbroadcasting legislation, at least in part in response to the impact ofdigital technology. The fact that these countries felt it necessary toreform their broadcasting systems at the same time, that they were allfacing the common challenge of digital broadcasting, and that theyhad all recently liberalised their telecommunications industries in theface of technological change and EU policy leadership, led to theexpectation that their broadcasting policies might also converge in asimilar direction; an expectation supported by much of the literatureon policy convergence. This article examines the broadcastingreforms that were undertaken and finds that there was very littleevidence of policy convergence and attributes this largely to thestrong, national institutional structures and intense politicisation thatcharacterise the broadcasting sector.

The question of policy convergence or policy transfer has received increasingattention recently, with most interest focusing either on areas where there hasbeen rapid technological change, or where a common set of administrativereforms (such as the creation of a new agency) or regulations have beenadopted in response to a shared set of problems.1 When examining the likelyimpact of digital broadcasting on policy convergence it is worth notingBennett's view on the technological change in the convergence process: 'Onceone accepts that the problem is one posed by the technology, then thecharacteristics of that technology do constrain policy choice. But that shouldnot lead us toward a technological imperative. While the technology frames thecontext of policy choice, authoritative decisions are only made by politicalactors who develop critical views about that technology... In the dataprotection case, to say that each country was forced independently andinexorably to a common solution ignores the critical role of internationalcommunication and learning among the different national elites.'2 Bennettidentifies four processes causing these political actors to adopt convergingpolicies. First, convergence through emulation, whose 'central characteristic

West European Politics, Vol.20, No.4 (October 1997), pp.24-42PUBLISHED BY FRANK CASS, LONDON

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DIGITAL BROADCASTING IN EUROPE 25

... is the utilization of evidence about a programme or programmes fromoverseas and a drawing of lessons from that experience'. Second, convergencethrough elite networking and the growth of policy communities. Hereconvergence 'results from the existence of shared ideas amongst a relativelycoherent and enduring network of elites engaging in regular interaction at thetransnational level', who are 'bound by knowledge and expertise of a commonpolicy problem and a shared concern for its resolution'. Third, convergencethrough harmonisation where 'the key variable' is 'interdependence, [and]policy convergence arises through the coincident recognition and resolution ofa common problem through the pre-existing structures and processes of aninternational regime'. Fourth, convergence through penetration, wherecountries 'are forced to conform to actions taken elsewhere by external actors',either through pressures from multinational companies seeking a commonregulatory framework, or through the activities of international organisationsseeking to force laggards to conform to the rules adopted by other members ofthe club.3

Whereas much of the literature focuses on providing explanations forpolicy convergence the emphasis in this article is on explaining why, in spiteof apparently favourable circumstances, there was so little convergence in thepolicies adopted by Britain, France and Germany towards digital broadcasting.The focus of this article is primarily on the very rapid changes that took placein the broadcasting policies of each country rather than on the, admittedlyimportant, context provided by EU policies on competition, the internal marketand the audio-visual sector itself. After a brief overview of the extent of policyand technological change the article looks first at the distinctive elements of theagendas adopted in each state in response to digital technology, second at theareas where there was clear convergence in the policy agendas if not in theoutcomes, third at the extent to which any of the states was willing to adopt aconverged regulatory framework for the entire communications sector, andfinally at the reasons why the broadcasting sector proved so resistant to policyconvergence.

CHANGING POLICIES, CHANGING TECHNOLOGIES

The mid-1990s were marked by an unprecedented wave of reform ofbroadcasting and media policy in Europe's major member states. France,Britain, Germany, Italy and Spain all made substantial changes to theirbroadcasting legislation. The year 1996 saw Britain's first new BroadcastingAct for six years, a major revision to Germany's Interstate Treaty onBroadcasting, and a law on Information Superhighways in France whichcreated a framework for pilot digital broadcasts. In 1997 Germany approvedtwo new pieces of legislation on the regulation of new media services (one

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26 WEST EUROPEAN POLITICS

at the federal level and one at the level of the Lander), the UK's TelecomsRegulator OFTEL issued Europe's most comprehensive set of guidelines onthe regulation of conditional access systems and electronic programmeguides for digital television, and in France the government of Alain Juppewas well on the way to producing a new Broadcasting Act before their planswere cut short by the victory of the Socialists in the elections of 1 June1997. The fact that these countries felt it necessary to reform theirbroadcasting systems at the same time, that they were all facing thecommon challenge of digital broadcasting, and that they had all recentlyliberalised their telecommunications industries in the face of technologicalchange and EU policy leadership, led to the expectation that theirbroadcasting policies might also converge in a similar direction; anexpectation supported by much of the literature on policy convergence.

Digital technology was identified by ministers in each of these threecountries as one of the key causes for their overhaul of media policy. It istrue that many of the key elements of the digital revolution - compression,convergence and the spread of conditional access technologies — appearedto demand radical policy change. Digital compression offered the ability tosqueeze up to ten channels into the amount of spectrum previously occupiedby one. Digital convergence promised to break down past sectoral divisionsbetween computing, telecoms and broadcasting, opening the way for the TVto be used as an access point to the Internet, for TV to be viewed on adesktop PC, or even for TV to be available via the Internet. Finally, thespread of conditional access technologies would transform much of TVfrom a non-excludable good to one that would only be available to thosethat had made a conscious choice to pay for a certain channel or programme.In time, the TV would become the main access point for home shopping,home banking, and for calling up video-on-demand and other interactiveservices, as well as for watching conventional programming. A key area ofcontention in discussion over communications regulation was the extent towhich these changes in technology required a review of the assumptionsunderpinning national broadcasting policies as well as greater convergence,or even harmonisation, between hitherto discrete national policies.

CONVERGENCE AND DIVERGENCE IN NATIONAL APPROACHES TOREGULATORY REFORM

National Agendas for Digital Regulation

The key elements of the policy agendas for digital television in France,Germany and the UK were dictated more by the unique political and marketstructures which prevailed in each country rather than any common

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public service broadcasters, and more time devoted to establishing regulationstailored to digital broadcasting rather than in simply blocking the loopholesthat had emerged in previous legislation, but it too laid considerable emphasison the maintenance of government control in the face of technologicalchange.7 Government policy was underpinned by the belief that 'for sometime to come broadcasting, and in particular public service broadcastingprovided by the familiar terrestrial network, is likely to continue to have adistinctly influential position in national life ... [and that] there is an importantcentral role for public service broadcasting for the foreseeable future astechnology develops.'8 With the exception of media ownership (which will betreated later), re-regulation rather than deregulation was the hallmark ofmeasures which imposed tough regulations on digital conditional accesssystems, a 'must carry' regime for public service channels on digital cablenetworks, provided protection against key sporting events only being shownon pay channels, and promoted the launch of DTT.9

The Conservatives' efforts to promote DTT both placed the UK at oddswith its neighbours, who were much more cautious about DTT, andappeared like a surprising attempt at industrial policy by a party whichnormally shunned such efforts.10 From the government's perspective DTThad the advantage of:

• Providing a national digital transmission system with guaranteedcoverage for the existing free-to-air public-service terrestrial channels;

• Offering a nationwide distribution system under UK governmentcontrol. Digital satellite transmission via the Astra satellites used byBSkyB also reached the bulk of the nation but had the disadvantage ofbeing controlled (and partly owned) by Luxembourg rather thanLondon-based regulators;

• Creating a rival digital system to BSkyB's digital satellite services. Thisaim was rarely articulated by a government which was wary of beingseen openly to challenge Rupert Murdoch's broadcasting interests. Onthe other hand there would have been concern if BSkyB had been ableto establish the same hold over digital TV that it already possessed in theanalogue pay TV market.

• Finally, the success of DTT would facilitate the eventual switch-off ofanalogue transmission and consequent auction of the spectrum whichhad been released." DTT's unique feature among digital broadcastingsystems - being receivable with a simple set-top aerial (rather thanrequiring connection to a cable system or a satellite dish) - was thoughtvital to increasing the acceptability of any future plans for switch-off.12

From the broadcasters' perspective DTT looked like an expensive

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DIGITAL BROADCASTING IN EUROPE 29

method of achieving nationwide coverage for a mere 20-30 channels asagainst the 200+ channels that digital satellite could offer, and there weredoubts whether consumers would buy DTT set-top decoders if they werenot compatible with those used for BSkyB's digital satellite services. Thegovernment's licensing framework for DTT was designed to overcomethese fears. Existing terrestrial broadcasters (BBC, ITV, Channels 4 and 5and S4C in Wales) were all given guaranteed access to digital frequenciesfor their existing services and applications were invited for three other DTTmultiplexes which were to be offered for a renewable 12-year licensingperiod. Applicants were, uniquely, not required to make any cash bid or payan annual fee.13 Together, these factors amounted to a huge incentive forcompanies to commit to DTT. Despite their initial scepticism, all theterrestrial broadcasters took up their reserved DTT capacity and twocommercial bidders emerged for the other three multiplexes that were madeavailable.14

German legislative responses to digital technology were dominated bythe peculiarities of a federal system which gave the Lander responsibilityfor broadcasting whilst leaving telecommunications regulation to thefederal government. The converging communications industry, therefore,raised a constitutional as well as a regulatory problem and a battle ensuedover whether new multimedia services were akin to telecommunications,and thus a responsibility of the federal government, or were more likebroadcasting, in which case they should be regulated by the Lander. Monthsof negotiations between federal ministers and the minister presidents of theLander, focused on the borderline between broadcasting andtelecommunications — an issue that in other countries barely surfaced ontothe political agenda. The compromise that resulted saw two pieces ofmultimedia regulation, an Interstate Treaty on New Media Services, and aFederal Information and Communication Services Act. The Federal Actregulated 'teleservices', defined as services for individual communication(e.g. home banking, data exchange), those providing access to the Internetor other networks, and services offered for information or communicationwith no editorial role or potential impact on public opinion.15 The InterstateTreaty on Media Services, meanwhile, applied to 'All information andcommunication services (media services) in form of text, audio or video thatare directed at the general public' This distinction between services that didor did not have any editorial input or impact could lead to surprising results.Thus, video-on-demand services involving entertainment programmes orcontent 'which is intended to contribute to the forming of opinion' are to beregulated by the Lander, whereas other video-on-demand services whichdid not meet these criteria will be regulated under the Federal law. Onecommentator has remarked how: 'From a legal perspective, such a political

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compromise on a constitutional question is more than questionable, and itwill probably only be a question of time until the allocation of competenceswill be challenged in court.'16

The revisions to the German Interstate Treaty on Broadcasting weremeanwhile dominated by issues such as changes to the media ownershipregime and the funding of the public service broadcasters with much of thedetail about the regulation of digital broadcasting, largely left to theindividual Land Media Authorities.17 The relative constitutional simplicity ofbroadcasting - it was clearly the responsibility of the Lander- meant that farless attention was devoted to the question of how broadcasting regulationneeded to adapt to digital TV, whose launch was imminent, than wasaccorded to multimedia services such as video-on-demand which would notbe available for years. As a result, Germany's first services started in theabsence of any proper licensing regime for digital broadcasting.18

Converging Agendas and Differing Outcomes - The Case of MediaOwnership

If digital technology was indeed encouraging a move towards policyconvergence between different nations, then it might be expected to be mostobvious in those cases where they tackled similar issues. Digital technologyintensified pressures for a relaxation and rationalisation of media ownershipcontrols that had for some time been felt across the EU. Indeed, the 1994Bangemann Report had identified the diversity of national media ownershipcontrols as an obstacle to the creation of an efficient European mediaindustry. Since the production of a Green Paper in 1992 the EU itself hadbeen making very tentative moves towards EU wide regulation of mediaownership.19

Large media companies had long been arguing that unduly restrictivenational media ownership laws placed them at a disadvantage in competingin international markets and they could point to the advent of digitaltechnology as strengthening their case. Convergence between telecoms,broadcasting and computing appeared to make traditional restrictions oncross-media ownership (i.e. between newspapers and TV stations) outdatedand less relevant, and the merger mania in the US media industry suggestedthat European operators also needed to be free to build large integratedcompanies to compete effectively. But it was equally possible to argue thatthe original justification for controls on media ownership, the need tomaintain pluralism and diversity in the media, was rendered increasinglyimportant by digital technology. The rising cost of key talent and rights, theeconomies of scope and scale that digital made possible, and the difficultiesof gaining access to the viewer for companies that did not themselvescontrol an installed base of digital set-top boxes, all represented sizeable

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DIGITAL BROADCASTING IN EUROPE 31

new entry barriers to the digital TV industry. Any government or regulatorattempting to reconcile these two conflicting goals - the creation of large,internationally competitive media companies and the preservation ofpluralism and diversity - would be called on to make pretty finejudgements. The intensely political nature of such decisions dictated thatnation states would be keen to retain their autonomy of action and a degreeof discretion in this area even as they liberalised the rules.

Reform of media ownership rules took up a major part of the UK 1996Broadcasting Act. Publication of the Bill had been preceded by a protractedmedia ownership review during which:20 'newspaper companies argued thecase for their control of broadcasters; terrestrial broadcasters wanted accessto satellite channels; and radio companies wanted simplification of the rulesgoverning their sector. Consumer groups, advertisers, academics and tradeunions emphasised the need to protect diversity.'21

In spite of its neo-liberal philosophy, the UK Conservative governmentrejected the most radical proposals for deregulation arguing thatcompetition law on its own would be insufficient since: 'Special mediaownership rules, which exist in all major media markets, are needed ...toprovide the safeguards necessary to maintain diversity and plurality' andthat the 25 per cent market share threshold used in UK competition policymight lead to the dominance of 'a handful of very powerful companies'.22

Many of the old limits on the number of independent TV franchises thatcould be held were replaced with a simple rule prohibiting any companyfrom owning TV licences (of whatever kind) that together commandedmore than 15 per cent of the national TV audience and, for the first timenational newspapers with less than 20 per cent market-share were free toown TV licences outright, subject only to the 15 per cent limit of the TVmarket and a public-interest test administered by the broadcasting regulator,the ITC. The key political significance of the change was that the choice ofa 20 per cent threshold for cross-ownership between newspapers and TVhad been carefully calibrated to prevent both the Mirror Group and RupertMurdoch's News International from taking over any existing terrestrial TVfranchise.

Germany went furthest in liberalising its media ownership rules throughvigorously debated amendments to the previous 1991 InterstateBroadcasting Treaty. Limits on the number of stations that could be ownedwere replaced by an audience share rule under which companies couldcontrol up to 30 per cent of the TV audience, irrespective of the number ofchannels they owned. A national media ownership commission, the KEK,was also established, to monitor market shares and ensure greater coherencein the way the different Lander applied the media ownership limits. Theintroduction of the 30 per cent audience share limit was the most dramatic

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move to liberalisation in Europe and was the product of a politicalcompromise which gave greater freedom to the two major German mediagroups, Kirch and Bertelsmann, with the former close to the CDU/CSU andthe latter identified with the SPD. Bertelsmann's broadcasting arm, UFA,was free to merge with the Luxembourg owned CLT; a merger which wouldgive the new company control of 'four private TV channels in Germanyamounting to 25 per cent of Europe's largest TV market (and half ofGermany's commercial TV market) as well as a number of TV channelsoperating under the RTL emblem in several other European countries.'23

Kirch, meanwhile seized the opportunity of the new rules to increase itsholdings in the commercial channel, Sat 1 ,24

France responded to calls for relaxation of media ownership controls ina different way. The 1994 Carignon Law of 1994 had already relaxed theprevious limit on owning more than 25 per cent of any TV stationauthorising ownership of up to 50 per cent of the capital of one channel, plusa maximum of 15 per cent in a second channel, and then up to 5 per cent ofa third channel.25 In the 1997 Bill the government of the day retained achannel-based set of limits for existing terrestrial broadcasting, whilstproposing a more relaxed framework for satellite operators, who were to befree to own up to 50 per cent of the satellite channels receivable in France;a threshold so liberal that it was unlikely ever to be crossed. Of the 153satellite channels that could then be received in France only 32 were whollyor partially in French hands; the proposed limit of 50 per cent of receivablechannels would, therefore, have allowed a single operator to control allFrench-language satellite channels. In response to pressure from its ownsupporters, the government amended its proposals to ensure that the 50 percent limit applied purely to the French-language satellite channelsreceivable in France.26

What emerges from this brief survey of changes to media ownershiprules is that although each of the countries reformed and liberalised itssystem, the extent and form of that liberalisation varied greatly, andgovernments sometimes diverged from their general ideological outlook.Germany went furthest along the path to liberalisation, with Britain andFrance trailing behind. But in each country, the choice of systems andthresholds for cross-ownership was heavily influenced by domestic politicalconcerns and lobbying by local media companies. An increased sense ofinterdependence led to moves to harmonise media ownership rules acrossGermany, (through the creation of the KEK), but the strong desire of eachof these three countries to retain their freedom of manoeuvre in such ahighly politicised field led them to view plans for any EU-wideharmonisation with a considerable degree of wariness.27

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Implementing the TV-Standards Directive

Most policy changes in response to digital broadcasting originated at thenational level and this discussion has so far has drawn attention to thelimited degree of policy convergence between those national initiatives. Theregulation of conditional access systems differed from that pattern in thatthe impetus for regulation came from the 1995 Advanced TV-StandardsDirective, and the measures that France, Germany and the UK took in 1997were essentially devoted to its implementation. The drafting of the 1995directive had also seen particularly close links between the Commission andthe various industry players involved in the Digital Video BroadcastingGroup (DVB).28 Together, these factors, might have been expected to lead toa relatively high degree of policy congruence in the ways in which the 1995directive was implemented. In practice though implementation variedgreatly, according to the political sensitivity of digital TV in each country.

The key provisions of the directive left digital TV operators free to usetheir own proprietary decoders, but obliged them to provide 'fair,reasonable and non-discriminatory access' to these conditional-accesssystems for third-party broadcasters. Since conditional-access systemswould become the key gateway controlling broadcasters' and other serviceproviders' access to the customer, the urgency with which regulation wasviewed largely depended on whether it was likely that a dominantconditional-access operator would emerge and on how it was thought suchan operator would be likely to behave. In Britain, the debate focused onRupert Murdoch's BSkyB, whose control of key programming, dominanceof the existing analogue pay-TV market, large installed base of subscribersand exclusive rights over a major encryption technology, meant that itseemed likely to become dominant in digital TV and could, in the absenceof adequate regulation, restrict competition. Implementation of the EUdirective on conditional access thus took on an unusual degree of politicaland economic salience. The Department of Trade and Industry consultedthree times on proposed implementation measures, with each successivedraft going further to patch up possible loopholes in the directive itself.29

The conditional-access guidelines produced by the telecommunicationsregulator, OFTEL, went still further in addressing issues such as the waysin which control of proprietary technology, the pricing of conditional accessservices, attempts to recoup subsidies for set-top boxes, and the appearanceand ranking of programmes on electronic programme guides could be usedto undermine the directive's non-discrimination requirements.30

In the UK BSkyB delayed even placing orders for its set-top boxes untilthe details of the regulatory regime were clear, whereas in France andGermany the Directive was not implemented until months after digital

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34 WEST EUROPEAN POLITICS

services had been launched, thereby making vigorous regulation unlikely.The key non-discrimination provisions of the EU Directive were simplytransposed into the French Broadcasting Bill of 1997 and the revisedGerman Interstate Broadcasting Treaty with questions of interpretation leftto the CSA and the Land media authorities respectively.31 Clearly, neithercountry viewed regulation of conditional access as a priority. The contrastbetween the approaches of France and Britain is particularly striking. InBritain concern centred on a lack of competition in digital TV, while the fearin France was rather of an excess of competition as three rival andincompatible digital satellite systems each tried to tempt consumers withtheir wares.32 None of the French digital TV companies attracted thepolitical controversy that surrounded Rupert Murdoch's media empire, evenif there was some disquiet about the potential impact of their parentcompanies' dependence on public construction and utility contracts.33

Finally, while in Britain, ITV and the BBC were vociferous in urging toughregulation, for fear that without it they might be unable to gain fair accessto digital viewers, the decision of two major French free-to-air broadcasters,TF1 and France Television, to work with Television par Satellite (TPS)which used its own proprietary conditional access system, effectivelyneutralised two powerful advocates of a more vigorous approach toconditional-access regulation.34 Once again, in an area where one mighthave expected considerable policy convergence - in this case both throughthe effects of elite networking and policy penetration - the political contextin each country had a substantial impact on the way in which the directivewas implemented.35

Converging Technologies, Policy Networks and the Case for ConvergingRegulation

Convergence between broadcasting, telecoms and computing may not haveeradicated the political imperatives guiding broadcasting policy, but it didraise new issues and bring new players, networks and policy styles intodiscussions of broadcasting regulation. The treatment of conditional access -where the Telecommunications and Information Society directorate of theCommission (DG XIII) was charged with producing the directive - andwhere, at least in the UK, it was OFTEL which would enforce the regulations- was indicative of the ways in which telecommunications policy networkswould increasingly become involved in broadcasting issues. Similarly, asbroadcasting began to be seen as part of the 'information society', as oneelement in a converging communications sector, so policy debate tended tofocus more on the technical and economic and less on the political andcultural issues, the sources of policy advice broadened and the potential forlesson drawing from other countries increased.36

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Increasingly a new policy community emerged which favoured thecreation of a single regulatory structure for the communications sector andsaw sector-specific broadcasting regulation as a major obstacle to change.Debate was initiated and often guided by telecommunications policymakers in the Commission (DG XIII and DG IV) or the OECD. Naturallythese groups were most inclined to test out their views on the players andofficials they knew best; telecommunications companies, manufacturers,and national officials from the ministries of telecoms and industry ratherthan with officials from the Lander or the national ministries of culture ornational heritage.37 This policy community was attracted by the idea that asbroadcasting and telecommunications converged so broadcasting couldbenefit from a wave of deregulation and Europeanisation similar to that seenin telecommunications. Many argued that digital compression underminedthe rationale for broadcasting policies born in response to spectrum scarcity;that the spread of conditional access technology would lead to more narrowcasting via subscription and pay channels - to television becoming morelike the magazine market and hence of less concern to public policy; andthat the most 'rational' and economically efficient solution lay in thecreation of a light touch converged regulatory framework for a convergingcommunications industry.38 But while the case for regulatory convergencewas often presented as the inevitable result of technological change it couldalso be used to mask the political agendas of its advocates; of nationalindustry officials keen to gain influence at the expense of culture ministries,of EU officials seeking to boost the importance of their Directorate Generaland extend the competence of the Commission, and of those new mediacompanies who believed a European-level, converged regulatoryframework would subject them to fewer and less onerous obligations thanwould national broadcasting and culture regulators.39

The international debate on the future shape of communicationsregulation took up many of these themes. In May 1994 the report ofCommissioner Bangemann's High Level Group on Europe and theInformation Society complained that: 'Europe's audio-visual industry is ....burdened with regulations. Some of these will soon be rendered obsolete bythe development of new technologies, hampering the development of adynamic European market.'40 In October of the same year a DG XIII GreenPaper complained that: 'differences within member states between thetreatment of broadcasting and telecommunications threaten to impede thedevelopment and distribution of advanced information/communicationsservices.'41 More recently, the OECD took up the same theme, arguing that:'It is necessary to eliminate the traditional regulatory paradigm based onstrict communication service boundaries.... There is also a need to reviewcontent regulation, especially in terms of liberalising the provision of

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transborder flows of information including content... At the international levelit is necessary to have greater harmony between national regulatory conceptsand practices.'42 Similar calls for reform were heard at the national level.OFTEL argued that as 'the traditional scarcity of broadcasting channelsbecomes an issue of the past, and as traditional telecommunications systemsbegin to offer video-based services, broadcast services will becomeincreasingly difficult to distinguish from other services [and]....the traditionalregulatory distinctions between broadcasting and telecommunications will bedifficult to sustain.'43 In Germany the federal government's Council forResearch, Technology and Innovation, launched a thinly veiled attack on theLander responsibility for broadcasting arguing that: 'To permit the freeunfolding of market forces in the new multimedia services and to avoidputting German suppliers at a disadvantage in international competition, auniform national regulatory framework for the media should be introduced'with regulation 'restricted to the absolute minimum'.44 Even in France, areport from the Commissariat General du Plan offered qualified endorsementfor the idea that there should be greater convergence between broadcastinglegislation and telecommunications regulation.45

In spite of the apparently logical case that was made for regulatoryconvergence, and the weight of support it attracted in international fora andthe telecommunications and multimedia policy communities, few ofEurope's governments were prepared to move very far in that direction. Thetreatment of video-on-demand, viewed as one litmus test of how theboundaries between broadcasting and telecommunications regulation wouldbe drawn, was left firmly in the hands of broadcasting regulators in Britain,France and Germany. Similarly, demands for the creation of a convergedregulatory framework at national level made very limited headway in thethree countries. Germany's federal structure made regulatory convergence aconstitutional impossibility. In France, Philippe Douste-Blazy, the ministerof culture, specifically rejected the idea, noting that: 'If in apparent contrastto the convergence between telecoms and audio-visual, the [Broadcasting]Bill maintains a distinction between the two regulatory authorities in thesesectors - the CSA and the ART [the new telecoms regulatory authority] - itis because the concerns about programmes and content, which have acultural dimension, are clearly very different from the concerns relative tothe regulation of telecommunications which have a technical dimension....Like the whole parliament I am an ardent defender of the cultural exception,that's why it seems to me indispensable to keep a regulatory authority whichis based on the audio-visual sector - the CSA - and even indeed to reinforceits tasks.'46 In Britain, the previous Conservative government made nomoves towards regulatory convergence, other than giving OFTEL leadresponsibility for conditional access. The Labour Party's proposal,

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advanced in opposition, for an 'OFCOM' carrying out essentially economicregulation across both the telecommunications and broadcasting sectors,represented a move in this direction, but its plan to reform, rather thanabolish the ITC, suggested that the Labour Party saw a continuing role forcontent regulation, even within a much larger broadcasting market.47

POLITICAL AND INSTITUTIONAL LIMITS TO POLICY CONVERGENCE

The dominant theme that emerges from this brief study of the broadcastingreforms of three major EU member states during the mid 1990s is one ofvery limited moves towards policy convergence in spite of a shared need torespond to digital broadcasting. Even when policy agendas converged, aswas the case in questions of media ownership control, or in theimplementation of a European directive on conditional access, policyoutcomes diverged considerably in response to differing politicalcircumstances and preoccupations.

In the introduction to this article we referred to the four processes,emulation, elite networking, harmonisation and penetration, identified byBennett as contributing to convergence. The complexity of broadcasting -which is addressed in reality by a multi-layered collection of discretepolicies which routinely cut across conventional departmental boundaries -would of itself present problems in using Bennett's approach to explainchange across the entire field of broadcasting policy, where, for example,elite networking might be at work in one area, harmonisation in another andpolicy penetration in a third. In reality the problem is even more complexsince even where these factors were at work, policy convergence was farfrom assured. Thus, elite networking in the telecommunications policycommunity helped launch a debate on a new regulatory agenda, but leftbroadcasting policy itself relatively unchanged. Harmonisation andincreased interdependence may explain a common move to relax mediaownership restrictions but does not help us understand the widely differingways in which such policies were devised. Similarly, policy penetration - inresponse to an EU directive - explains why member states were obliged tointroduce regulations on the use of conditional-access systems, but not thewide variations in the enthusiasm with which they approached this task.This suggests that in the case of broadcasting, while Bennett's approach isof some help in understanding the processes at work, it only provideslimited guidance as to their outcomes.

Broadcasting's peculiar resistance to policy convergence owes much toits institutional structure and intense politicisation. In each of the threecountries examined, broadcasting policy emerged from the interplaybetween a web of institutions - of politicians at national and Land level, of

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regulators, the courts (in the German case), officials and the broadcastersthemselves - that were both specific to each country, and made particularlypertinent Rose's observation that 'new programs cannot be constructed ongreen-field sites ... they must be introduced into an environment dense withpast commitments'.48 Technological change more often led to minor reformsof existing institutional structures (which were themselves the product ofhard-fought political, commercial and bureaucratic battles) than it was usedas an opportunity for a radical overhaul either of these institutions or ofhitherto shared policy objectives. Broadcasting policy making is also highlypoliticised, both because policy changes are very visible (on the screen) andbecause of the intense interest that politicians take in the cultural, politicaland - increasingly the economic - impact of television. This politicisationhas led to a strong desire to control the policy process and outcomes in away that has limited the scope for technocratic decision making andinhibited cross-national policy convergence and Europeanisation. Somelessons have been drawn, but this has focused more on the exchange ofinformation about ways to block regulatory loopholes and re-establishnational control over broadcasting than on moves towards greater policyconvergence or a transfer of responsibility to the European level.

Bennett remarks how policy convergence 'should ... be seen as aprocess of 'becoming' rather than a condition of 'being' more alike and it ispossible to argue that the influence of these institutional and politicalobstacles to policy convergence will decline as digital broadcastingbecomes established.49 After all, digital convergence has already helpedlaunch a debate in international arenas over the future shape ofcommunications regulation and has created new policy networks, even ifthe calls for regulatory convergence have not, as yet, been translated intochanges in national broadcasting policy and regulation. But technologicalchange alone - even one as dramatic as digitalisation - seems unlikely toundermine the belief of politicians that the cultural and political impact ofbroadcasting dictate that most regulation must be decided according topriorities established within each member state. As long as broadcastingmarkets remain distinct from the rest of the communications sector andprimarily national in nature, that situation seems unlikely to change.

NOTES

1. See C.J. Bennett, 'Different Processes, One Result: The Convergence of Data ProtectionPolicy in Europe and the United States', Governance 1/4 (Oct. 1988) pp. 415-41, 'What isPolicy Convergence and What Causes It?', British Journal of Political Science 21 (1991a)pp.215-33; 'How States Utilize Foreign Evidence', Journal of Public Policy 11/1 (1991)pp.31-54; D. Dolowitz and D. Marsh, 'Who Learns What from Whom: A Review of thePolicy Transfer Literature', Political Studies 44 (June 1996) pp.343-57; R. Rose 'What is

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Lesson-Drawing?' Journal of Public Policy 11/1 (1991) pp.3-30.2. Bennett, 1988, (note 1) p.427.3. Bennett, 1991a (note 1) pp.221, 224, 225, 229.4. Commissariat Général du Plan, Les réseaux de la société de l'information. Rapport du

Groupe présidé par Thierry Mileo (Paris: Editions ASPE Europe 1996) p.35; Lettre demission to Senator René Trégouet by the Prime Minister, Paris, Jan. 1997.

5. Law on experimental trials in the information technology and services domain 1996, Act N°96-299. For the CSA view of the law see La Lettre du CSA 74 (Nov. 1995).

6. The 1997 bill which is discussed here will not become law because of the Socialists' electionvictory on 1 June 1997. Nevertheless, the bill provides a useful indication of the extent towhich it was thought necessary to update French broadcasting policy. See speech by PhilippeDouste-Blazy, Minister of Culture in the French Senate, for an overview of the bill'spurposes. Journal Officiel, Sénat, Débats Parlementaires, séance du 19 février 1997,pp.852-4.

7. 'If digital is going to work anywhere in Europe, it will be here. We have a proven track recordin the successful commercial exploitation of new technology', Lord Inglewood, NationalHeritage Minister, Speech to Digital Television Group, (London 4 July 1996) DNH Pressrelease 198/96 'UK to Lead Digital Broadcasting Revolution'.

8. Dept of National Heritage, The BBC and the Future of Broadcasting. Memorandum to Houseof Commons National Heritage Select Committee (London 1997).

9. The previous 'must carry' regime for analogue cable services had been abolished by the 1990Broadcasting Act.

10. In spite of protestations to the contrary, thus: 'The Government aims to facilitate the launchof digital broadcasting ...This will allow better use to be made of the current analoguebroadcasting spectrum in due course. But Government should not play a more prominent roleby consciously planning a particular technological or market outcome. It is for thebroadcasting industry and the consumer to determine the shape and content of broadcastingservices in the future', Dept of National Heritage, 1997.

11. In this respect UK policy was influenced by the US experience of spectrum auctions. In May1996 a White Paper on management of the radio spectrum was published which outlinedplans to use spectrum pricing to help prevent undue congestion. In 1997 one of the firstmoves of the new Labour Government was to accelerate plans to introduce charges for non-broadcast use of the spectrum.

12. A review of the date for analogue switch off was due as soon as either five years had elapsedfrom the start of DTT or when 50 per cent of the population were using one or other form ofdigital TV.

13. During the first 12 year period. The BBC was also allocated an entire digital multiplex onwhich it was encouraged to provide both existing and new free to air digital services. Amultiplex is a block of spectrum (equivalent to an existing UHF channel) which canaccommodate between 2-6 digital channels.

14. In June 1997 the ITC announced that it had awarded the licence to British DigitalBroadcasting (BDB), a consortium which originally brought together Carlton, Granada TVand BSkyB. BSkyB was required to withdraw as a shareholder (but not as a programmesupplier) as a condition of the licence being granted. ITC News Release, 24 June 1997. TheEC Competition Commissioner Karel Van Miert had previously expressed fears about thecompetition implications of BDB's original configuration. European Report (Brussels 7 June1997). OFTEL opposed the award to BDB arguing that 'the participation of BSkyB either asa consortium member or as a long-term supplier of certain pay TV services, in particularsports programming, raised substantial competition concerns in the pay TV network andconditional access markets'. OFTEL Press Release, 24 June 1997.

15. Article 2, Information and Communication Services Act 1997.16. P. Chrocziel and J. Dieselhorst, 'Multimedia Legislation in Germany: What is

"Broadcasting"?' Computer and Telecommunications Law Review 5 (1966) p.196.17. Or to their umbrella organisation, the Standing Committee of Land Media Regulators, the

DLM. On the question of conditional access, which was also addressed in the Treaty, seebelow.

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18. When Leo Kirch's channel, DF1, started broadcasting in 1996 it had to operate undera 'trial-service' licence from the Bavarian Media Regulator which gave it access to satellitedistribution, but only to the Bavarian cable networks. The rival station, Premiere, launcheda series of legal actions against DF1 aimed at keeping it off cable networks outside Bavaria.

19. See European Commission, Green Paper on Pluralism and Media Concentration in theInternal Market: An Assessment of the Need for Community Action, COM (92) 480 (21 Dec.1992), European Commission, Communication from the Commission to the Council and theEuropean Parliament, Follow-up to the Consultation Process Relating to the Green Paper on'Pluralism and Media Concentration in the Internal Market', COM (94) 353 (5 Oct. 1994),European Commission, Pluralism and Media Concentration in the Internal Market:Questionnaire No III concerning a possible initiative on media ownership, DG XV unit E/5(1995).

20. Almost 18 months elapsed between the announcement of a media-ownership review in Jan.1994 before the government's first proposals were produced (see note following), these thenhad to be refined before publication of the Broadcasting Bill at the end of 1995.

21. Dept of National Heritage, Media Ownership. The Government's Proposals (London: HMSO1995) Cm. 2872, pp.11, 17.

22. Ibid., p.3.23. P. Humphreys, 'Power and Control in the New Media', Paper to ECPR Workshop on 'New

Media and Political Communication', Bern 1997, p.6. On the subject of the CLT/UFAmerger, Humphreys writes that 'Germany's most recent ownership rules seem designed toaccommodate precisely this kind of "mega-merger".'

24. C.-M. Ridder, 'Media politics, diversity and the gatekeeper debate', Intermedia 24/4(Aug./Sept. 1996) pp.24-6.

25. Suggestions that the Jospin Government elected in June 1997 will repeal the Carignon Law,and reinstate the previous 25 per cent limit on ownership of a single channel, would representa further divergence from the policies adopted in the UK and Germany. Le Monde, 5 and 10June 1997. It would also oblige Bouygues (with 39 per cent of TF1), Lyonnaise des Eaux(with 34 per cent of M6) and others to reduce their holdings in the audio-visual sector. LesEchos, 10 June 1997.

26. See J.-P. Hugot, Rapport fait au nom de la commission des affaires culturelles (Paris: Senat,Feb. 1997) for the government's explanation of the purposes of the bill, a critical assessmentof it, and a list of all the satellite channels receivable in France.

27. The UK and France have opposed any EU measure on media pluralism, arguing that underthe subsidiarity principle the matter should rest with the member states. DG XV's draftproposals would set single media limits which would prevent any TV or radio company fromexpanding or taking control or another of the total audience share of the services it wouldown in the sector would exceed 30 per cent in the area concerned. Cross-media ownership(that is, TV and radio) would be limited to a 10 per cent audience share in the area concerned.See Agence Europe, Europe Daily Bulletin, 3 March 1997 and 21 March 1997.

28. For a full discussion on the gestation of the directive see D.A.L. Levy, 'The Regulation ofDigital Conditional Access Systems: A Case Study in European Policy Making',Telecommunications Policy 21/7 (Aug.1997).

29. DTI, The Regulation of Conditional Access services for Digital Television: FinalConsultation Paper on Detailed Implementation Proposals. (London, Nov. 1996) andprevious drafts of Jan. and June 1996. The final regulations, DTI, The Advanced TelevisionStandards Regulations 1996 (SI 96/3151) should be read jointly with the Conditional AccessServices Class Licence which came into force on 7 Jan. 1997.

30. OFTEL, The Regulation of Conditional Access for Digital Television Services (March 1997).31. The German Interstate Treaty, did, however, go beyond the directive in applying the non-

discrimination principle to the operation of Electronic Programme Guides as well toconditional-access systems and the Standing Conference of Land Media Authorities (DLM)has produced a ten-point plan for the introduction of digital TV in Germany, which providessome guidance on how they propose to regulate conditional-access services and electronicprogramme guides. The 1996 Telecommunications Act also included the key non-discrimination principles from the European directive but these have not as yet been applied.

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32. Canal Satellite, Télévision par Satellite, and AB SAT.33. A Socialist amendment to the Broadcasting Bill proposing that 'any company which owns

ten per cent or more of the capital in a media company or its subsidiary, should not be ableto compete on the public markets', was specifically aimed at the involvement of companiessuch as Bouygues (TF1), Lyonnaise des Eaux (M6) and Générale des Eaux (Canal Plus) inthe media industry. Assemblée Nationale, Compte rendu analytique officiel, 19 mars 1997,2e séance, pp.43-4.

34. Although it seems likely that the new Socialist government may call into question thisalliance between the public broadcaster France TV and TPS. Le Monde, 5 June 1997, LesEchos, 10 June 1997.

35. Political factors played an even greater role in Spain, where the new Conservativegovernment passed a Digital TV law in April 1997 giving a rival digital TV company, ViaDigital, which was backed by the government, the right to decide whether Canal SateliteDigital's (CSD) 80,000 SECA digital decoders should be made compatible with its own,which at that time had not been launched on the market. The measure clearly went beyondthe terms of the Directive and was part of a more general government attack on the PrisaGroup, which was identified with the opposition Socialists, and was, along with Canal Plus,major investor in CSD. Canal Plus and SECA have lodged a complaint with the Commissionagainst the Spanish government's action. See Agence Europe, 7 June 1997, Le Monde, 7 June1997; Daily Variety (US) 6 June 1997; Financial Times, 28 June 1997.

36. For a discussion of Europeanisation, see E. Skogerbo, 'External constraints and NationalResources. Reflections on the Europeanization of Communications Policy', NordicomReview of Nordic Research on Media and Communication 1 (1996) pp.69-80.

37. See L.Cram, 'The European Commission as a Multi-organization: Social Policy and ITPolicy in the EU', Journal of European Public Policy 1/2 (Autumn 1994) pp.195-217 for adescription of DGXIII's 'symbiotic relationship' with the IT industry.

38. KPMG, Public Policy Issues arising from Telecommunications and AudiovisualConvergence. (Report for the European Commission) (London 1996).

39. Richardson's description of the role of policy networks is particularly apposite here: 'Bydrawing other policy actors into the policy process, the Commission may be able to buildcoalitions in favour of its own notions of desirable policy change. By assisting the formationof networks of "relevant" state and non-state actors, or by "massaging" the way that thesenetworks operate, the Commission can maintain its position as an "independent" policy-making institution and can increase its leverage with the Council of Ministers and the EuropeanParliament. Information and ideas are important building blocks in this process'. J.Richardson, 'Policy-making in the EU: Interests, Ideas and Garbage Cans of Primeval Soup',in idem (ed.) European Union: Power and Policy-Making (London: Routledge 1996) p.15; V.Schneider, G. Dang-Nguyen and R. Werle, 'Corporate Actor Networks in European Policy-Making: Harmonizing Telecommunications Policy, ' Journal of Common Market Studies 32/4(Dec. 1994) p.494 comment on how in telecommunications the 'Commission succeeded intransforming an initially national issue into a European one, pushing the Member Statestowards harmonisation of their policies and, moreover, setting the pace for a constant andconvergent development of their legislation into the direction defined by the Commissionitself. The Commission harboured similar hopes for its information society programmes.

40. European Commission, Europe and the Global Information Society: Recommendations tothe European Council. Report of the High Level Group on the Information Society (TheBangemann Report) (Brussels 26 May 1994).

41. European Commission, Green Paper on the Liberalisation of TelecommunicationsInfrastructure and Cable TV Networks - Part I : Principle and Timetable (COM(94) 440, 25Oct. 1994) (Brussels: 1994).

42. OECD, Committee for Information, Computer and Communications Policy, InformationInfrastructures: Their Impact and Regulatory requirements (Paris: OECD 1997) OCDE/GD(97)18 pp.7-8.

43. OFTEL, Beyond the Telephone, the Television and the PC (London: OFTEL 1995) p.4.44. Council for Research, Technology and Innovation, The Information Society: Opportunities,

Innovations and Challenges. Assessment and Recommendations (Bonn: Federal Ministry of

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Education, Science, Research and Technology 1996) Emphasis added p.24.45. Commissariat Général du Plan, 1996 op. cit., pp.37-8 , 'Il est donc apparu essentiel... que,

sans ignorer leur finalité distincte, législation sur l'audiovisuel et réglementation destélécommunications puissent évoluer dans le sens d'une plus grande convergence. L'entréedans la société de l'information suppose, à terme, que l'ensemble des nouveaux servicesmultimédias puissent relever d'une réglementation unifiée qui garantisse notamment laneutralité juridique en ce qui concerne les supports'.

46. Journal Officiel, Sénat, Débats Parlementaires, séance du 19 février 1997, p.875.47. Labour Party, Communicating Britain's Future (London: The Labour Party 1995) pp.8-9.48. R. Rose, Lesson Drawing in Public Policy: A Guide to Learning Across Time and Space

(City, NJ: Chatham House 1993) p.78 quoted in Dolowitz et al. 1996 (note 1) p.353.49. C. Bennett, 1991a (note 1) p.219.

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