The media sector welcomes the political agreement on the DMA proposal as a significant step towards curtailing the market dominance of gatekeeper platforms and restoring competition.

A broad coalition from the European media sector, including public and commercial broadcasters, radios and the press, welcomes the provisional agreement reached yesterday evening on the Digital Markets Act (DMA).

We applaud the institutions for their ambition and commitment to seeing the DMA through, especially within such a tight timeframe. The agreement reached by the co-legislators reflects the political vision required to preserve a diverse, vivid and innovative digital landscape.

We encourage the European Commission, in collaboration with national competition authorities, to support the long-term sustainability of media services that rely on gatekeepers to reach digital audiences. This will, in turn, foster the ability of European consumers and citizens to access services that support the pluralistic flow of information and creative diversity in Europe.

We rely on the European Commission to ensure that the obligations foreseen in the DMA are effectively enforced and abided.

Grégoire Polad, on behalf of the media coalition, said: “The deal that was achieved last evening is a historical step towards ensuring fairness and contestability in digital markets. Targeting the regulation to genuine gatekeepers is the right approach. This is good for business and innovation, but also good for democracy as harmful practices by the gatekeepers will no longer be tolerated, ensuring Europe’s rich and diverse media can flourish on a more equal footing. Fairness should prevail as a guiding principle in the DMA and we welcome the co-legislators’ efforts in this direction. We expect big tech to start complying with the new rules as soon as possible and we encourage the European Commission to proceed on the enforcement phase of the regulation.”

Download the joint statement here.

The Association of European Radios (AER) welcomes the outcome of the trialogue negotiations and the agreement reached by the EU institutions on the Digital Markets Act (DMA).

We welcome the political vision shown by the policy makers and the significant steps taken to tackle unfair conduct by online gatekeepers that harms contestability and fairness in digital markets.

Matt Payton, AER’s Secretary General, said “Europe’s commercial radio sector has been calling upon the Commission and the EU co-legislators to tackle the risks associated with listening platforms in a gatekeeping position, so that listeners can continue to enjoy unfettered access to radio stations of their choice over the long term, free at the point of use.

The agreement on the DMA, with its much-needed ex-ante regulatory approach, provides a unique opportunity for the EU to tackle the growing challenges that digital platforms pose to the radio sector, at a time when these platforms are increasingly taking control of large parts of the digital audio ecosystem. We welcome its adoption”.

Maintaining tight quantitative thresholds, introducing voice assistants and web browsers into the list of core platform services, combined with the do’s and don’ts in articles 5 and 6 (for example, those which relate to self-preferencing, data-hoarding, and Sherlocking), will help to mitigate the growing challenge that virtual assistant platforms in a gatekeeping position pose to radio, and create opportunities for increased digital audio listening and innovation.

Proper implementation and effective enforcement by the European Commission is the next step that needs to be achieved in order to truly ensure fair and open digital markets.

Imagine a world where platforms can censor negative news about themselves, where they can make arbitrary adjustments to their terms and conditions to block or remove news stories and real debate between citizens online is curtailed. This is what could happen if platforms are not obliged to respect European fundamental rights in the Digital Services Act (DSA).

This week in plenary, MEPs will vote on the DSA’s final amendments. This is an historic moment for European citizens whose activities and media consumption, especially since the pandemic, have largely shifted online. Representatives from the media sector remind lawmakers that, without the proper policies in place, platforms will continue to have free rein on what content is seen by European citizens. This is unacceptable from a media freedom and democratic perspective.

Despite contradictory and false messaging, the recently tabled amendments to article 12(1) and recital 38 are not a “media exemption” but would ensure the safeguard of fundamental rights online. Tabled by MEPs from across the political spectrum, amendments 511 and 513 (see text below) clarify that platforms must respect media freedom and pluralism, as well as respect better communication with media organizations. We wholeheartedly welcome the efforts of a diverse group of MEPs to include this important safeguard in the DSA and encourage the Plenary to support them during the vote.

“These amendments draw from abuses directly experienced by media organizations, from the suspension of business accounts to the deletion of entire uploads. Making platforms accountable to fundamental rights and media laws should not be a nice-to-have but the cost of doing business. Moreover, preserving a quality and diverse media ecosystem is our best tool against the proliferation of fake news,” concluded Conor Murray from EGTA.

“Our sector regrets that the very organisations that claim to fight disinformation – a very serious and technical matter – would publicly campaign against the media freedom amendment and especially overlook the substance of the suggestions,” lamented Francesca Fabbri from AER.

“There is no filter to lawful content in the offline world, so citizens should not be forced to accept such behaviour online. Failure to protect fundamental rights and media content online would mean that under a DSA without the safeguard clause, the boundaries of press freedom would no longer be defined by law, but by private companies,” stated Ilias Konteas, from EMMA & ENPA.

Wout van Wijk, from News Media Europe added: “The DSA is all about clarifying platforms’ responsibilities and content moderation, including towards media organisations. As the DSA creates a risk of muzzling the media, such risk must be addressed right now.”

Wouter Gekiere from the EBU said: “The latest amendments look to introduce obligations to make platforms accountable for upholding fundamental rights and to respect media freedom and applicable content rules. No more, no less. The media sector is subject to many content rules at European and national level. Platforms should not override them, for example by setting different age limitations on editorial content. These types of actions put limits to our media and freedom of expression laws.”

Angela Mills Wade from EPC noted, “There is no justification for imposing on legitimate news publishers a second, parallel system of regulation. The platforms’ algorithms are not remotely capable of making the very sophisticated judgements which our editors make, and which they defend in Court if necessary. Furthermore, we have seen all too often that algorithms cannot understand context; for instance, an algorithm will be unable to understand the difference between a video of a terrorist incident used by a terrorist website to promote its aims, and the same piece of content used on by a news publishers to illustrate a legitimate news report.”

Without amendments to safeguard the fundamental rights enshrined in the Charter, including media freedom and freedom of speech, online platforms would be legally allowed to remove editorial content entirely on the basis of their terms and condition. This would lead to a situation where the boundaries of press freedom are not defined by law but by private companies.

Notes to press: Full text of amendments

Amendment 513 – Proposal for a regulation Article 12 – paragraph 1

Amendment 511 – Proposal for a regulation – Recital 38

For more information, please contact the AER office in Brussels at aer(Replace this parenthesis with the @ sign)aereurope.org">aer(Replace this parenthesis with the @ sign)aereurope.org.

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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.

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.