Radio’s experience today is hybrid, with radio programs being accessible terrestrially via FM and DAB/DAB+ or via fixed or mobile broadband networks using IP streaming.

5G broadcast could enable unprecedented radio and TV consumption on mobile devices: high quality access to the full range of radio programs, anywhere, on any mobile device, at no access or broadband costs. For this to happen, the sub 700 MHz band (470-694 MHz) must continue to be exclusively allocated to broadcast transmissions.

In times of crisis as well as increasing disinformation, radio and TV being a source of trusted information is of vital importance. Broadcasters play a significant public value role, providing reliable news and curated quality content, making a vital contribution to media plurality. 5G broadcast will enable radio and TV to improve its significant public value role of delivering trusted, culturally diverse and, in case of manmade or natural disasters, lifesaving safety information to the public.

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What is 5G for radio and why is it important for radio?

5G broadcast combines the advantages of 5G (mobile communications standard) and broadcasting (radio and TV), enabling very high efficiency in terms of spectrum usage, network costs, network coverage and energy consumption. With 5G broadband, inefficient (one-to-one) IP-streaming is replaced by a broadcast transmission (one-to-many). Moreover, this mode of transmission is much more energy efficient than one to one transmission, and will therefore contribute to a significant reduction in CO₂ emissions.

In addition, 5G broadcast offers significant customer benefits: linear radio (and television) services could be received on all 5G-capable mobile devices and at no additional mobile broadband costs, at home and on the move without unnecessarily burdening users’ mobile data limits. While currently it is necessary to set up a streaming connection whenever one wants to consume radio or TV via smartphone, with 5G broadcast a smartphone operates like a portable radio or TV set.

Taken together, the technical possibilities, energy efficiency gains and expected customer benefits create significant additional benefits for society. For example, in case of manmade or natural disasters as well as emergency situations, in which the population can mainly be reached via classic radio receivers, 5G broadcast provides a technology to effectively inform citizens via smartphone or other mobile and connected devices, wherever they are, at no additional cost.

Finally, thanks to 5G transmission, radio will be able to continue to innovate and provide listeners with access to news and entertainment content via their smartphones, tablets, smart speakers and connected car systems. Radio will continue to provide diversity of content and pluralism of opinion. This is, in times of crisis and increasing disinformation, especially important. Radio is a vital source of trustworthy information.

Broadcasters play an important public value role in providing reliable news and curated quality content.

Background

Licensed broadcasters make a critical contribution to media pluralism and diversity. With their news services, they make a crucial contribution to safeguarding democratic discourse. In the event of a disaster or an emergency situation, radio is the first – and often the only remaining – medium for informing the public. The COVID pandemic makes it very clear how important quality media, especially radio, are in disaster situations to inform the population.

Furthermore, broadcasters are an important economic input as they create and secure thousands of jobs. To safeguard the future of the radio and TV industry and its services, it is necessary to set a technological course that takes into account the changes in media consumption habits that accompany digitisation.

Securing spectrum in the future

Spectrum is needed for the terrestrial distribution of broadcast content. Traditional radio broadcasting, e.g., uses the 87.5 to 108 MHz frequency band for FM transmission and the 174 to 230 MHz frequency band for DAB+. Terrestrial television broadcasting currently uses the 470 to 694 MHz frequency band for DVB-T and DVB-T2 transmission. 5G Broadcast, as the future mobile broadcast transmission standard for linear radio and television content, should also use the 470 to 694 MHz frequency band. No other frequencies would be available for audiovisual broadcasting, and a significant risk of harmful technical interference would arise in the event that this band was allocated on a co-primary basis to mobile telephony (or any other non-broadcast related use not already permitted within this sub-band). For this reason, the so- called ‘sub 700 Mhz band’ needs to be preserved exclusively for broadcast use also in the long-term.

In this context, the next International Telecommunications Union’s World Radiocommunication Conference in 2023 (WRC-23) will be the forum where the decision on the future use of spectrum will be made at international level. The next WRC will take place in 2023 and will consider possible regulatory interventions in the 470 – 694 MHz band based inter alia, on the results of spectrum use and studies conducted by ITU-R. A ‘no change’ to the existing allocations will mean that broadcasting remains the exclusive primary service in 470-694 MHz, with programme-making and special events (PMSE) as secondary service, and will in fact be able to continue on its path of transformation and innovation, e.g. by introducing 5G broadcast or future broadcast related technologies and thus opening up smart devices for one-to-many broadcast reception.

For the highly adaptive and innovative broadcasting industry “change” is a central paradigm of their work, as regards the direct and effective reaction to changing market requirements or media consumption habits. In order to do so, however, broadcasters need the required frequency spectrum, which is why “No Change” is indispensable with regard to frequency assignment. It is essential to preserve the ‘sub 700 band’ exclusively for broadcasting and PMSE, and to secure it well beyond 2030 so that broadcasters can provide reliable news content, entertainment and companionship to all mobile users and ensure democratic discourse. A co-allocation, or loss, of these broadcasting frequencies would completely end terrestrial TV broadcasting and also pose an existential threat to terrestrial radio broadcasting via FM and DAB+ in the medium term as the broadcasting costs of transmitters and tower rents for radio would suddenly rise.

Download the document here.

For more information, please contact Francesca Fabbri at the AER office in Brussels at  francesca.fabbri(Replace this parenthesis with the @ sign)aereurope.org

About Us

The Association of European Radios (AER) is the Europe-wide trade body for commercial radio, representing the interests of companies operating over 5,000 commercial radio stations to the EU Institutions. The AER’s mission is to promote the development of commercially-funded radio broadcasting in Europe, by advocating for a fair and sustainable economic regulatory framework for radio, which will, in turn, allow commercial radio to continue to deliver significant public value and, beyond that, support media plurality, improve social cohesion and promote European culture.

]]> 2452 https://www.aereurope.org/aer-joins-edra-and-ebu-in-calling-the-co-legislators-to-include-voice-assistants-in-the-digital-markets-act/ Thu, 07 Oct 2021 09:50:42 +0000 https://www.aereurope.org/?p=2315 AER, the European Digital Radio Alliance (EDRA) and the European Broadcasting Union (EBU) came together to co-sign a letter highlighting and addressing the growing dominance of digital voice assistant platforms: they are gatekeepers for radio services and they are going to have more prominent role in the future.

The three organisations urge the co-legislators to clarify the text and make sure the proposed Digital Markets Act regulation includes voice assistants in the scope of this new regulatory framework so to prevent any anti-competitive behaviors from the platforms.

Read the full joint letter here.

Joint statement to EU institutions:

Public service and private radio broadcasters call on EU lawmakers to include voice assistants in the Digital Markets Act.

Europe’s private and public service radio broadcasters have come together through the undersigned organisations – EDRA, EBU and AER – to request you to address the growing dominance of digital voice assistant platforms. Urgent intervention is required to prevent these platforms from being able to adopt anti-competitive behaviours; this could include charging for access, self-preferencing, restricting access to data, using data from third party services to develop their own services, and inserting publicity without permission.

We welcome the Digital Markets Act regulation (‘DMA’) as an essential step in restoring and promoting a fair relationship between gatekeepers and radio companies. Nonetheless, as it currently stands, it may fail to take advantage of this unique opportunity to provide appropriate regulatory safeguards for the online audio/radio environment, at a crucial moment for this emerging market. We, therefore, call on the EU legislators to clarify the text, by explicitly mentioning that the proposed Digital Markets Act regulation also applies to voice assistants.

Traditionally associated with smart speakers, voice assistants have now been adopted in environments where physical keyboards are absent, e.g. on smartphones or in the car via their integration into infotainment operating systems.

The growth in connected devices and the rapid growth in usage of voice assistants has started to change the way audio services are discovered and accessed. The European radio and audio sector is fully embracing the opportunities that digital technologies have to offer, having provided some of the first services available via voice assistants.

Access to broadcasters’ content via voice assistants is an important paradigm shift that will radically change our relationship with listeners. Historically, radio broadcasters have enjoyed a secure position in the audio value chain, where licences for broadcast have been granted by regulators, and broadcasters have owned or leased their own transmitters to reach their audiences, without any interference by third parties. With the adoption of voice assistants in the home, the car, on smartphones and tablets, access to audio and radio content will become increasingly intermediated by voice assistant providers, which will impact content transmission and users’ freedom of choice. Such new intermediation is particularly challenging, as the main tech industry players benefit today from significant market power in the voice assistant market as well as in adjacent markets, which enables them to impose conditions regarding the content accessible on their devices, and thereby impacting listeners.

The case for regulating voice assistants under the DMA is not just economic. It is also crucial to safeguard media pluralism and the provision of trusted information. Radio delivers a broad range of public value to listeners, including trusted local and national news bulletins that reach hundreds of millions of listeners daily across Europe, at a time when fake news is rife on social media networks. Clarifying the application of the DMA to the audio/radio sector is an important step in protecting the most trusted source1 of news and information and supporting media pluralism in Europe.

While the European Commission may have intended to include voice assistants in its DMA proposal2, the current text does not make this explicit enough. Later, the European Commission itself raised again concerns about the significant market power and gatekeeper role of voice assistant providers in the first findings of its investigation into the Consumer Internet of Things3. We note that the significant market power of voice assistants is often amplified in online environments where they are integrated, for instance, in in-car infotainment systems where typically listeners are only able to access their digital radio and audio apps via a single voice assistant platform, thereby strengthening the latter’s gatekeeper position with respect to radio content providers. Typically, they provide users with only one result, instead of a list of results, thus making the choice for the user and directly influencing the selection. For instance, in response to a request for news, a voice assistant will only provide one specific source.

Therefore, it is essential that the DMA covers this type of platform, either by clarifying the definition of “online intermediary services” or including them as a new “core platform service”.

Furthermore, considering the small size of the digital audio market, dominated by a limited number of gatekeepers enjoying significant market power, we welcome the possibility for the Commission to designate a provider of a core platform service as a gatekeeper, where such a provider fulfils the qualitative criteria of Article 3(1) without meeting all the thresholds of Article 3(2) through the flexibility offered by Article 3(6).

In her statement following the publication of the first findings of the sector inquiry on the Consumer Internet of Things4, Vice-President Margrethe Vestager stressed that a number of the practices reported in the inquiry feature in the “Do’s and Don’ts” of the Commission’s proposal for the Digital Markets Act, and that “the sector inquiry will certainly contribute to the debate on the scope of the Digital Markets Act”. We believe the Digital Markets Act regulation is an essential step in restoring and promoting a fair relationship between gatekeepers and radio services. This balance is first and foremost essential for EU citizens who trust such services every day. This is a unique opportunity to promote a fair and open online audio environment, at a crucial moment for this emerging market.

We would therefore urge the co-legislators to update the DMA along these lines to protect the radio industry, not just for economic reasons, but because of the widespread societal benefits – the most trusted news source (as demonstrated during the COVID crisis), connecting people to their communities, and providing companionship. If such modifications are not included, the DMA will have failed to provide the radio and audio market with the protection it requires to function effectively.

About Us

The Association of European Radios (AER) is the Europe-wide trade body for commercial radio, representing the interests of companies operating over 5,000 commercial radio stations to the EU Institutions. The AER’s mission is to promote the development of commercially-funded radio broadcasting in Europe, by advocating for a fair and sustainable economic regulatory framework for radio, which will, in turn, allow commercial radio to continue to deliver significant public value and, beyond that, support media plurality, improve social cohesion and promote European culture.

Brussels, 22 June 2021

Europe’s media sector welcomes the Commission’s proposal on the Digital Services Act (DSA) and supports its aim of creating a safer, fairer, and more transparent online environment, based on European values and the protection of fundamental rights.

Global online platforms have become an important gateway for citizens to access and consume reliable information and diverse content of public and commercial broadcasters and press publishers. Many of these players, however, restrict the dissemination of lawful media content, and their monetisation, based on their unilaterally imposed terms and conditions. Their recommender systems have a profound impact on the information and facts that users can access, the way they are presented to, and on how opinions are shaped. At the same time, online piracy continues to deprive Europe’s creative and cultural ecosystems of revenues for reinvestment in production and creating jobs.

It is therefore time for Europe to impose more responsibilities on global online platforms – which have long ceased to be mere providers of technological infrastructure – and make them more accountable by reflecting their market power, daily mass reach and influence on societies. It is time to restore trust in the online environment and provide a safe space where media can fulfil its broader democratic function.

For these reasons, we advocate for targeted amendments to the DSA proposal, in no particular order of importance, to ensure that the DSA reflects the significant influence of global online platforms on access to content and information, on opinion-making and on the creative ecosystem. Certain smaller platforms operated by media organisations, such as discussion fora, should, however, not be overburdened by due diligence obligations. Particularly, we call on European policymakers to:

Ensure that the principle of “what is illegal offline should be illegal online” becomes an enforceable reality. Certain targeted amendments should be introduced on the notice and action mechanism (Art. 14), i.e. making the condition of the validity of notices less stringent, more future proof and less costly, for example by deleting the obligation to provide the exact URL when notifying illegal content. Moreover, the status of trusted flaggers (Art. 19) should be extended to rightsholders, which have demonstrated expertise and competence for the purpose of detecting, identifying and notifying copyright infringements.

Protect the editorial freedom of media organisations by introducing safeguards as to prohibit global online platforms from interfering with the content media organisation make available on their services, based on the platforms’ terms and conditions, moderation policies or community guidelines. To promote trust in media and press online, global online platforms should refrain from taking any editorial decision, in the sense of removing, suspending, disabling access to or otherwise interfering with editorial content and services lawfully uploaded by a media organisation. Global online platforms with no editorial responsibility should not take any editorial decisions or exercise unjustified scrutiny over content that is produced by editorially responsible and regulated actors. If a dispute arises, it is up to courts or national regulators to decide and instruct the platform operators to act accordingly. Such an obligation should, however, be without prejudice to the liability of global online platforms for illegal uploads of our members’ content by third parties.

Ensure proper brand attribution of media content. When audiences access media content through social networks, news aggregators, or search engines, they need to be able to easily identify who bears the editorial responsibility over it. Failure by platform operators to attribute content to its source or incorrect attribution of logos and branding deprives audiences of an essential element to judge the information they see and hear. The DSA should thus ensure that the identity of media organisations (e.g. logos/branding) is clearly visible alongside the content and services they provide.

Further enhance transparency in the online environment by extending the know-your-business-customer obligation (Art. 22). Only a broad obligation on platform operators to verify the identity of their business users will truly contribute to combatting fraudulent activities online and the dissemination of illegal content, such as copyright infringements.

Further enhance the transparency of platform operators’ recommender systems, as they impact the way media content can be found online. In particular, they should inform (business) users and regulators about the functionality of their recommender systems and the main criteria for aggregating, selecting and presenting content (Art. 29).

Oblige platform operators to set clear, transparent, non-discriminatory, unambiguous and predictable terms and conditions (Art. 12). The obligation should however clearly limit the possibility of platform operators to remove or delist content that is under the editorial responsibility of a media organisation. It is equally important to ensure that changes in the platform operators’ terms and conditions are duly communicated in advance, in order to limit the potential damages this could have on business users, such as media organisations and the content they made available, in terms of visibility, ranking, user traffic, advertising, etc.

Clarify the interplay with sector-specific laws and the Member States’ competence to regulate. Sector-specific rules best reflect the dual nature of the media, being cultural as well as economic goods. In particular, the Audiovisual Media Services Directive and national rules taken in accordance with it should not be affected by the DSA. Moreover, it should be specified that the DSA does not affect Member States’ competence to regulate issues related to cultural diversity and media pluralism, also in relation to intermediary service providers.

Ensure proper enforcement of the DSA rules. We agree with maintaining the country of origin principle, which is key for the free movement of digital services in Europe. With a view to ensuring swift and effective enforcement of the DSA throughout the EU, cross-border cooperation between the Digital Services Coordinators should be strengthened. As regards the European Board for Digital Services, we would consider useful if stakeholders could engage and raise concerns in cross-border cases. We also urge policymakers to make sure that independent national regulatory authorities for the media, which hold a great expertise in the regulation of certain online services with a view to promoting freedom of expression, are properly involved in the enforcement of the DSA, within the scope of their mandate.

Ensure the sustainability of the press and media. Online advertising is a particularly important source of revenue for media organisations. Funding their operations through advertising should not be undermined by the DSA. This could have a detrimental effect to media freedom and pluralism in the EU. Balanced legislation on advertising that safeguards both citizens’ fundamental rights and equal competitive opportunities in the online environment is crucially needed. The DSA should therefore tackle the data practices and monopolisation of advertising revenues by global online platforms, while ensuring the sustainability of the press and media.

Disclaimer: This document presents the common position of multiple organisations representing several media industries. Individual entities/media sectors may support additional or different demands that are not reflected here.

Download the PDF here

About Us

The Association of European Radios (AER) is the Europe-wide trade body for commercial radio, representing the interests of companies operating over 5,000 commercial radio stations to the EU Institutions. The AER’s mission is to promote the development of commercially-funded radio broadcasting in Europe, by advocating for a fair and sustainable economic regulatory framework for radio, which will, in turn, allow commercial radio to continue to deliver significant public value and, beyond that, support media plurality, improve social cohesion and promote European culture.

Background

Radio content reaches 85% of European citizens each week with a mix of music, news, entertainment and talk that brings great economic, societal and cultural value to a wide variety of Europeans on a local and national level    

To remain relevant to its listeners, commercial radio has innovated, developed its content and presence in an extremely competitive digital environment. In addition to linear radio broadcasting (FM, AM and DAB), radio listeners can now access the radio content of their choice, and benefit from a personalised listening experience, via voice enabled connected listening platforms, including smart speakers, tablets, and in-car infotainment systems.

Identified Challenges

The quid pro quo of commercial radio innovating and adapting to changing consumer behaviour is that radio is increasingly dependent on large online platforms’ “core platform services^[1]. Voice enabled connected listening platforms, also known as digital voice assistant platforms, act as gateways to reach listeners, effectively putting both radio operators and their listeners at the mercy of the online platforms’ own commercial interests. The challenges and risks that the growing dominance of these online platforms pose to commercial radio are significant, and must be adequately addressed via the proposed Digital Markets Act (DMA).

Indeed, Europe’s commercial radio sector has been calling upon the Commission to ensure that none of the risks associated with gatekeepers arises, so that listeners can continue to discover and enjoy unfettered access, free at the point of use, to radio over the long term.

The DMA proposal, with its much-needed ex-ante regulatory approach, represents a unique opportunity for EU lawmakers to tackle the growing challenges that digital platforms with gatekeeper status pose to the radio sector, at a time when these platforms are increasingly taking control of large parts of the digital audio ecosystem.

Subject to certain clarifications, the obligations and prohibitions set out in articles 5 and 6 of the DMA proposal should be able to help preserve the contestability of the digital audio ecosystem.

Recommendations

The following clarifications are required from a radio standpoint:

1. Clarify that digital voice assistant platforms enjoying gatekeeper status constitute core platform services;

2. Ensure the findability of commercial radio services and content by listeners online, including via digital voice assistant platforms;

3. Prevent digital voice assistant platforms enjoying gatekeeper status from self-preferencing their own radio-like services, at the expense of the commercial radio services that they distribute;

4. Prevent digital voice assistant platforms enjoying gatekeeper status from being allowed to limit or restrict access to third party radio services (for example, by invoking any internal community guidelines), or charge for carriage.

5. Prevent digital voice assistant platforms enjoying gatekeeper status from inserting sponsorship or advertising around third party content services without the express consent of the radio operator.

In Detail

1. Scope

It is essential that the scope of the regulation remains tightly focused, as proposed by the Commission^[2]. We believe that any broadening of the scope would only serve those who oppose the proposed regulation or disagree with the opportunity of introducing it. Hence, the DMA should aim at regulating a small number of large digital platforms that are unavoidable gateways between digital service providers and their large user base. Afterall, it is the conduct of a few large digital platforms that threatens the contestability and fairness of digital markets and the DMA should focus on such platforms.

The AER calls on the EU institutions to clarify that digital voice assistant platforms enjoying gatekeeper status constitute core platform services which fall within the scope of the DMA. As the role and importance of DVAs will likely increase in the future, we consider that it is necessary to advocate for an explicit reference.

2. Discoverability & self-preferencing

The DMA Proposal must ensure the findability of commercial radio’s content and services by listeners online, including via digital voice assistant platforms. It is paramount that radio content can be easily found and discoverable by users of platforms. This includes ensuring that users are accurately and impartially directed to the content they have requested via the platform’s electronic programme guide (EPG) or voice activated ranking services (instead of being directed to the platforms’ own, competing, services). Moreover, platforms should provide transparent information on the algorithms which underpin the discoverability of the content they carry.

Related to this, the DMA must prevent gatekeeper’s capacity to self-preference their own services, including any radio-like services of selected third parties, at the expense of the commercial radio services that they distribute. This risk is increased by the fact that DVAs will typically generate a single response to a voice request made by a user, unlike the hundreds of results that a user could find on a typical search page.

Whilst the DMA Proposal includes provisions that seek to prevent self-preferencing practices by core platform service providers (Article 6(1)(d) and Recitals 48 and 49), AER calls for an explicit reference to DVAs to be incorporated into in Recitals 48 and 49, to clarify that such rules should also be applicable to DVAs          

3. Access & Non-discrimination

The DMA Proposal must prevent gatekeepers from restricting listeners’ access to commercial radio’s content and services online. This includes clarifying that platforms enjoying gatekeeper status shall not be allowed to limit or restrict access to third party radio services, or charge for carriage.

Whilst the Proposal sets out an obligation to apply “fair and non-discriminatory conditions of access for business users,” this only applies to one category of CPSs, namely the app stores. However, given the nature of gatekeeping platforms and DVAs, which act as gateways to specific services, we call for an extension of the scope of Article 6(1)(k) to cover CPSs other than app stores and to explicitly include DVAs, requiring them to apply fair and non-discriminatory conditions of access to all business users.

It is imperative that the appropriate balance is struck between the gatekeepers’ freedom to conduct their business and ensuring the fairness and contestability of the digital markets in which they are present.

4. Advertising

The ability of online platforms to generate revenues by free riding on the content made by radio operators is detrimental to commercial radio’s viability. It is essential to clarify that platforms enjoying gatekeeper status cannot insert sponsorship or advertising around any third party radio content that they distribute, without the express consent of the content provider. Furthermore, where a radio service has consented to the insertion, by an online platform, of sponsorship or advertising around its radio content then said radio service  must receive a fair share of any advertising  revenue generated by such activity.

In our view, this can happen in two ways, either add this obligation as a separate obligation under Article 6(1) or amend Article 6(1)(k) to also include this obligation.

5. Data sharing & Sherlocking

As per Article 6(1)(a) of the DMA Proposal, platforms enjoying gatekeeper status must “refrain from using, in competition with business users, any data which is generated through the activities of said business users” including from their customers, via these platforms. Business users would include the radio broadcaster companies who use these platforms and this obligation would apply to any DVA platform enjoying gatekeeper status.

It follows from the above that DVA platforms must provide the third party radio services they distribute with unlimited access to and use of all of the data they have collected from or generated in relation to said radio services. This must be done free of charge, on a continuous and real-time basis. Furthermore, gatekeeper platforms should not be allowed to use this data for their own services, unless they have obtained prior consent from a radio station to do so. Platforms should not be allowed to circumvent these data sharing obligations through special agreements or by just using radio aggregators or other intermediaries (e.g. TuneIn).

In its current form, the Regulation connects the obligation to share the data to the gatekeeper’s capacity to obtain user consent for data sharing. However, it should be made clear that if the gatekeeper does not obtain consent from end users to share their data with its business users, the gatekeeper must also not use such data itself.

While this provision constitutes a step in the right direction to prevent “sherlocking” practices by gatekeeping platforms, including DVAs, it will not be sufficient to prevent gatekeepers from using business and end user data they have gathered thanks to their gatekeeping role. This data can provide them with unparalleled market intelligence, allowing the identification of successful services or products offered by the business users and the subsequent development of competing services or products by the gatekeeper. This is because Article 6(1)(e), in its current form, would allow gatekeepers to use such data if they are made publicly available. In order to, therefore, provide an effective solution to the problematic practice of platforms unduly competing with their business users thanks to the data insights which have obtained through their gatekeeper role, the reference to “any data not publicly available” should be removed. Otherwise, gatekeepers may be incentivized to circumvent article 6(1)(a) by making certain data which would normally not be publicly available, publicly available (where privacy rules permit) – which coupled with the economies of scale and scope and the network effects these gatekeepers enjoy – would still unfairly favour gatekeepers over their business users.

6. Timeframe for investigations and proceedings

Timely intervention in digital markets that are at risk of tipping, such as the digital audio market, is key. Several articles of the Regulation touch upon timeframes. In our view, if we want the Regulation to have a meaningful impact some of these timeframes should be shortened. Specifically:

• Article 3.8: the regulatory dialogue between the Commission and the gatekeeper in order to specify the measures for compliance with the obligations is due to last 6 months, but it should be reduced to 4 months in order to ensure that business users of the gatekeeper and eventually end-users are not exposed to the harmful conduct for longer period. Every day counts for businesses and end users alike.
• Article 16: the timeframe for market investigations into systematic non-compliance, currently set at 12 months, should be reduced to 6 months. The Commission is set to launch market investigations after at least three non-compliance or fining decisions against a gatekeeper in relation to any of its core platform services within a period of five years prior to the launch of market investigation for systematic non-compliance. This means that the gatekeeper has already demonstrated harmful conduct to the detriment of business repeatedly and for a long time and the Commission is already aware of the problem. We should not prolong a harmful situation.
• Article 17: if the DMA wants to ensure that digital markets remain fair and contestable, then the timeframe for market investigations in order to add new services to the list of core platform services or adding new practices (in Article 5 or 6) should be reduced to 12 months. The Commission should be able to act swiftly to ensure and stop gatekeepers from practices that harm their business users and 2 year is far too long.
• Article 25: a specific timeframe for the adoption, by the Commission, of non-compliance decisions should be introduced. We believe that such decisions should be delivered in no more than 12 months after the initiation of the proceedings by the Commission (as described in Art. 18).

Finally, it is critical that the Commission retains the power to adopt interim measures (Art. 22) when there is prima facie finding of infringement of Articles 5 and/or 6. It is a security net for the businesses to not be irreversibly harmed by the conduct and practices of gatekeepers while the Commission’s investigations are ongoing. We call on the European Parliament and the Council to resist any attempts to water down this article.

Conclusion

The Association of European Radios welcomes and supports the DMA Proposal, which with some targeted amendments will be a much-needed tool to prevent designated gatekeepers from taking advantage of their size, their strong market position and the dependency of the business users that rely on their platforms to provide their products or services to end users.

With the adoption of our proposed clarifications to the DMA, radio service providers, who play a critical role in delivering media pluralism, trusted news, and cultural enrichment within the digital ecosystem, at a time when fake news is rife online, will stand a better chance of being  treated fairly by gatekeeper platforms, including app stores, digital voice assistants, online search engines, operating systems, online social networking services, Moreover, with our proposed improvements, we are confident that the contestability of the digital audio ecosystem will be greatly improved,  to the benefit of competition, innovation and ultimately consumers. We invite the EU co-legislators, European Parliament and the Council, to act swiftly and decisively so that radio can benefit from the regulatory safeguards that it requires, over the long term.

[1] Article 2(2) of the European Commission’s Proposal for a Digital Market Act, 2020/0374 (COD)

[2] Without prejudice to the Commission’s powers to identify gatekeepers pursuant to article 3 paragraph 6 of the DMA.

About Us

The Association of European Radios (AER) is the Europe-wide trade body for commercial radio, representing the interests of companies operating over 5,000 commercial radio stations to the EU Institutions. The AER’s mission is to promote the development of commercially-funded radio broadcasting in Europe, by advocating for a fair and sustainable economic regulatory framework for radio, which will, in turn, allow commercial radio to continue to deliver significant public value and, beyond that, support media plurality, improve social cohesion and promote European culture.

European media and journalists, civil society groups, professional organisations and technologycompanies call on decision makers to protect fundamental rights

Dear European Parliament’s Rapporteur and Shadow Rapporteurs,

Dear Members of the Working Party on Cooperation in Criminal Matters (COPEN),

We, the undersigned organisations, are writing to you to underline how fundamental rights protection in the E-Evidence Regulation must continue to remain a priority during the ongoing trilogues negotiations. Whereas we recognise the importance of enabling targeted access to data by law enforcement authorities for the purposes of criminal investigations, we believe stronger safeguards need to be included in the operational part of the draft Regulation.

We regret that none of the negotiating positions has fully taken into account our concerns, as outlined in our previous joint statement.1 In particular, we believe the following issues deserve further discussion and revision from a fundamental rights and media freedom perspective:

Articles 7, 8a, 9, 10, 10a: Need to ensure a legal, systematic and meaningful involvement of the executing Member State

It is our view that “direct cooperation” with private companies poses serious risks of violating human rights law by undermining key fundamental rights principles, including media freedom. In particular, when it does not require the notification and confirmation of the country where the company is located and/or where the data subject resides. Direct cooperation in a cross-border collection of personal data risks infringing data protection laws and criminal procedure laws as well as contradicting the sovereignty of the targeted countries.

This is why we fully support the European Data Protection Supervisor’s opinion of 6 November 2019, calling for a “greater involvement of judicial authorities in the executing Member State” and the requirements that “they should be systematically involved as early as possible in this process, have the possibility to review compliance of orders with the Charter and have the obligation to raise grounds for refusal on that basis.”

The notification and validation of the executing Member State would ensure that:

• immunities and privileges designed in domestic legal systems to protect medical and legal professions, confidential communications between lawyers and clients, freedom of the media and freedom of expression are respected;
• traditional judicial cooperation principles like the non bis in idem and dual criminality principles are observed;
• legal certainty is given to individuals and service providers as both cannot be reasonably expected to know criminal law provisions of all 27 Member States;

From this perspective, we encourage the Council to take into account the Parliament’s approach to these issues, which we consider an absolute prerequisite for the protection of media freedom and fundamental rights. Furthermore, the notification and active confirmation should apply to the production of all data categories and provide for strict deadlines for the executing Member State. To ensure that evidence is swiftly secured, the suspensive effect of a notification mechanism should not apply to preservation orders – thus allowing to freeze the data as soon as possible until the compliance review is over.

Article 10a: Protect lawyers, doctors and journalists

The confidentiality of lawyer-client communications and special protections persons may have in their capacity as doctor or journalist should be duly taken into account when reviewing the legality of an order. Likewise, the issuing State should consider the national security interests of the affected Member State – where it is distinct from the issuing and executing States and the person’s residence is known. This is especially relevant if the other Member States’ rules are different or even incompatible with the rules of the investigating authorities’ own domestic investigation.

Moreover, the recognition of rules related to “freedom of the press and freedom of expression in other media” should be recognised as a ground for refusal for the enforcement of an order. In addition, it should be clarified in recital 35 that all journalistic activities are covered by immunities and privileges.

Article 4: Ensure that orders are subject to judicial authorisation

In Tele2 Sverige and Watson and Others, the Court of Justice of the European Union (CJEU) ruled that “it is essential that access of the competent national authorities to retained data should, as a general rule, be subject to a prior review carried out by a court or independent administrative body, except in cases of validly established urgency.” Also, the European Court of Human Rights has repeatedly pointed out the importance of an ex-ante review by a court or another independent authority and expressed a clear preference for a judge.2Thus, to set the proposed Regulation in line with both the CJEU3 and the European Court of Human Rights case law, we believe that the issuance of a production or preservation order for any type of data should requirea judicial review and validation only by a court or an independent administrative authority.

Article 11: Inform the affected person as soon as possible that the interference occurred

The person whose data is sought should be informed without undue delay and restriction that their personal data has been subject to an order. It is a fundamental element supporting the rights to a fair trial and to access effective remedies recognised by the jurisprudence of the CJEU that should not be restricted, even in the absence of ensuing criminal proceedings and unless otherwise decided by a court.

Article 7a: Ensure the authenticity, security and efficiency of data exchanges

We recommend that the E-evidence proposal is accompanied by a secure central data exchange system between service providers and authorities in order to guarantee the security and integrityof data transfers and allow the service provider to verify the authenticity of an order. This would minimise the risk of severe data breaches of highly sensitive information, such as by exploitationof the cross-border data disclosure framework by cybercriminals who could commit identity theft (by impersonating competent authorities) or other cybercrime.4 Considering that several Member States have already successfully implemented such a data exchange system, it is indispensable to ensure interoperability of these systems in order to avoid that service providers would have to simultaneously implement parallel data exchange systems. Otherwise, it would create substantial burdens especially for small and medium-sized enterprises and service providers would find it extremely challenging to comply with the short deadlines established in the Regulation. Where service providers already have a secure system for data transmission in place, such a system could be used instead as long as their systems enable the identification and authentication of sender and receivers and ensure data integrity.

To conclude, we call on the negotiators to build a predictable, accountable legal structure for access to personal data across borders that does not undermine existing fundamental rights protection standards.

We look forward to cooperating with you in the subsequent steps of the negotiations and remain at your disposal should you have any questions.

Sincerely,

Association for Proper Internet Governance (APIG)

Association of European Radios (AER)

Bundesverband Digitalpublisher und Zeitungsverleger e. V. (BDZV)

Committee to Protect Journalists (CPJ)Council of Bars and Law Societies of Europe (CCBE)

Deutscher Anwaltverein Digitale Gesellschaft e.V.eco – Verband der Internetwirtschaft

European Broadcasting Union (EBU)

European Digital Rights (EDRi)

European Federation of Journalists (EFJ)

European Internet Services Providers Association (EuroISPA)

European Magazine Media Association (EMMA)

European Newspaper Publishers’ Association (ENPA)

European Publishers Council (EPC)

IT-Pol DenmarkInternet Service Providers Austria (ISPA)

Iuridicium Remedium, z.s.

Mailfence – ContactOffice Group sa

News Media Europe

Nextcloud GmbH

Tutanota – Tutao GmbH

Statewatch

Verband Deutscher Zeitschriftenverleger (VDZ)

Wikimedia (Free Knowledge Advocacy Group EU)

1 https://edri.org/wp-content/uploads/2020/09/Joint-e-evidence-coalition-letter-14-09-2020.pdf

2 Benedik v Slovenia App no. 62357/14 (ECtHR 24. April 2018), Szabo v Hungary App no 37138/14 (ECtHR 12 January 2016)

3 In “La Quadrature du Net and Others” cases and its opinion on the EU-Canada PNR agreement, the CJEU recalls that access to any retained data, including subscriber identity and IP addresses, constitutes an interference withthe fundamental right to the protection of personal data. Therefore, the CJEU requires “substantive and procedural conditions” for the access to retained data, notably that it must be subject to prior review by a court or an independent administrative body.

4 The risks of cybercriminals impersonating competent authorities in other countries are genuine, as illustrated bythis recent case of a forged court order sent to a domain registrar from an email return address very similar to that of the real German court: https://www.vice.com/en/article/qj8833/dark-fail-fake-court-order-dark-web-markets

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A small but growing proportion of radio listening is now on internet connected devices. Radio needs to provide the best possible experience for listeners on these devices to help secure its future. Radioplayer provides an important way of achieving this.

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1.     Radio’s online presence is vital for its future  

Radio listening online through mobile phones, smart speakers and other internet enabled devices is growing and becoming increasingly important.  In this online environment radio has to be easy to find and provide listeners with the best possible user experience. The best way to achieve this is through platforms owned and operated by the radio industry, avoiding third-party aggregators that may look to exploit their gatekeeper position.  

2.     Radioplayer – sharing technology, competing on content  

AER believes radio broadcasters need to work together wherever possible to keep radio listening simple and accessible, using a combination of broadcast and internet distribution. The Radioplayer platform provides an important way of doing this, by bringing together online radio listening at a national level and providing the opportunity for private and public broadcasters to work together, so that they can share technology but continue to compete on content. Created in 2011 in the UK, Radioplayer is now present across many European countries. Its not-for-profit model and the fact that it is owned jointly by commercial radio and public service broadcasters means that it offers a safe, secure and trusted alternative to other online aggregators.  

3.       One voice for the radio industry  

The role of Radioplayer is likely to become even more important in future.  As online listening and platforms continue to grow, so will the need for the radio industry to be able to speak with one voice with car companies, hardware manufacturers and technology platforms. Radioplayer already partners with car companies and technology platforms which want to integrate radio. It prioritises great interfaces, both visual and voice, as well as hybrid radio that switches platforms automatically between broadcast and online (particularly effective in cars).  

4.     AER’s commitments to Radioplayer  

Given the growing importance of online radio listening alongside broadcast radio, AER makes the following commitments designed to support the future growth and success of Radioplayer and the radio industry as a whole.  Specifically, AER will:

• provide public support for Radioplayer and promote it as an option that all broadcasters should consider using at a national level
• share information and experiences of working with Radioplayer among commercial radio operators;
• work with Radioplayer to speak with one voice to the car industry and technology companies wherever possible, to ensure radio has a strong presence on all platforms and devices now and in the future.

  For more information, please contact Matt Payton, AER Secretary General matt.payton(Replace this parenthesis with the @ sign)aereurope.org

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AER continues to support a multi-platform future for radio: ensuring reception of terrestrial free to air analogue and digital broadcasting, complemented by IP, is crucial to maintain a healthy radio market in Europe. Multi-standard solutions – which allows the listener to access radio via all possible devices throughout the continent – are a positive signal for future developments.

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AER supports multi-standard solutions for devices as part of a multi-platform future for radio
New personal devices (e.g. smartphones, car integrated systems, smart speakers, etc.) should integrate analogue and digital broadcast standards with internet radio. The future of radio is multi-standard and multi-platform, including via 5G for broadcasting. Even if the latter might only be commercially useable for radios as from 2030 onwards, action is necessary now to secure the right conditions for radio.

5G for broadcasting – a combination of one-to-one and one-to-many
Broadcasting is the transmission of the same information from one transmitter to many receivers (one-to-many). Mobile connections are usually enabling bidirectional contacts between a device and a server therefore ensuring each person receives tailored information (one-to-one). 5G for broadcasting would combine both as it should enable a one-to-one connection (5G) to switch to a very localised broadcast signal if enough requests for the same programme are sent by devices located in the same vicinity. The main feature of 5G for broadcast must be the “the broadcast privilege” as on terrestrial FM/DAB+ broadcast (such as Free to Air, No SIM, no third-party Gatekeeping, mandatory interactivity/addressability).

5G for broadcasting – enabling flexibility for broadcasters
Broadcasters should have the possibility to create and operate their own 5G for broadcasting infrastructure or via commissioned third parties.

5G for broadcasting – legal guarantees in case of network slicing
Where radios would have to buy a fixed bandwidth from an existing mobile network operator and then manage and operate this “slice” under its control and conditions (with / without subscription, no SIM, but return channel for interactivity), regulation must ensure that radios are reserved enough capacities, and legal conditions are set to allow radios to use sliced spectrum such as ex ante price control, access regulation, no network neutrality risks, integrity and secured network conditions.

5G for broadcasting – spectrum needs
To ensure uninterrupted transmission of programmes anywhere, it is necessary to be able to use frequencies as low as possible (from 470MHz to 700 MHz) – also in order to enable larger and more economically efficient broadcast cells. It is therefore essential to secure at the International Telecommunications Union’s World Radio Conference 2023 spectrum capacity for broadcasting (TV and radio) in Band IV (470-582 MHz) and Band V (582 to 694 MHz) with to be able to serve the population with information, culture and entertainment and grant democratic discourse.

No auctions (of 5G spectrum for radio)
Radio is the most intimate and most trusted medium (Eurobarometer Survey of November 2018 (EB90)). Radios inform, entertain and educate the audience. During manmade or natural disasters, radio is the first – and often the only remaining – tool to inform the public. Most commercially funded radios are SMEs. In their role to deliver trusted, lifesaving and culturally diverse content, radios bare burdensome public value obligations and are therefore in no position to compete with other market players for spectrum.

Complementing the 2017 AER position on radio’s access to infrastructure[1], AER calls on the RSPG, BEREC, European Commission, European Parliament and Member States to secure the UHF band for broadcasting beyond 2030 and provide legal and economic certainty for radios in case of network slicing.

[1] http://www.aereurope.org/digital-single-market-radios-access-to-infrastructure-the-future-of-radio-is-multi-platform-2015/

AER continues to support a multi-platform future for radio. As well as analogue broadcast streams and digital broadcast signals the inclusion of other digital means of transmission in radio receivers, such as internet reception, will help to ensure a continuing healthy radio market in Europe. Multi-standard solutions – which would allow all devices to listen to radio throughout the continent – is a positive signal for future developments.

AER supports multi-standard solutions for devices as part of a multi-platform future for radio

In order to fully develop radio on all platforms new radio receivers should also embrace internet radio. New devices such as mobile phones or tablets should be encouraged to integrate and enable analogue and digital broadcast standards with internet radio. The future of radio is multi-standard and multi-platform, leaving flexibility for new business models enabled by actors such as RadioDNS.

1. Radio’s future is multiplatform

• Radio remains primarily a broadcast medium – it is still unclear how transmission of radio via internet will develop. From this perspective, in most of Europe, currently and for the foreseeable future, the main viable business model for the majority of existing radios is free-to-air FM broadcasting on band II (87.5-108 MHz). In some EU Member States, listening is still performed by AM. There are approximately 4 to 5 radio receivers in every household in Europe. Besides, during manmade or natural disasters, radio is the first – and possibly the only remaining – tool to inform the public.

• Radio needs to be on every platform: radio’s future is a mix of broadcasting and internet transmissions – as it has been for the past 50 years, radio is everywhere, mobile, simple-to use, interactive and free-to-air. These features make it the most intimate and most trusted medium (Standard Eurobarometer Survey of Autumn 2014 (EB82)). Listeners need to rely on the ability to receive radio on these same terms in the future, by analogue and digital broadcasting as well as internet transmissions. These means of transmission will all be part of the patchwork of transmission techniques for commercially funded radio in the future. It is therefore essential that any integrated device (phone, tablet, etc.) contains a chip that enables listening to the radio by analogue and digital broadcast as well as online means. When these chips are set on devices, they should be activated.

2. Radio’s best regulatory conditions ensuring access to infrastructure

• Radio is local, regional or national: regulatory decisions should continue to be taken at the same level – national radio frequency landscapes and national radio broadcasting markets are different, with divergent plans for digitisation, diverse social, cultural and historical characteristics and with distinct market structures and needs. Consequently, further coordination at EU level of spectrum management on the bands used by radio does not seem necessary, or appropriate.

• Radio’s access to bands II and III as a primary and unique user is paramount to ensure a healthy future for radio – as broadcasting is and will remain the backbone for all radio transmissions, it is essential that radios’ access to the bands mentioned above is preserved. Most commercially funded radios are SMEs. They are in no position to compete with other market players for spectrum. There should be no market-based approaches for spectrum management of radio bands.

• No EU switch-off date for analogue radio broadcasting services should be envisaged – across the EU, plans to migrate from analogue technology to digital broadcast technology are being actively discussed and tested. Decisions on whether to proceed and the appropriate time-frame should be left to each national industry.

• The open internet must remain open – when radio is listened to online, the quality of services provided should be at least equal to broadcasting on-air: uninterrupted transmission of programmes. However, commercial radios are, in their vast majority, SMEs: they are in no position to financially compete for access to the internet with other market players. There should be no restriction created by introducing new categories within the open internet and as a consequence set obstacles to “best effort” and media pluralism in the long term.

• Radios must be found online – it must be easy to find radios in an online environment: a must-be-found principle could be applied for radio online. At least, and given the fact that search engines constitute essential facilities online, search results should objectively reflect the search request, without undue (commercial) influence on these results. Search results should equally not end up privileging services owned, administered or controlled, in whole or in part, by search engines.

Contact: Vincent Sneed, AER Director Regulatory Affairs / vincent.sneed @ aereurope.org