Europe Lays Framework for Mobile Satellite TV by 2009

At the same time that the US makes its first transition to an all-digital terrestrial broadcasting system for television, member states of the European Union may all be rolling out mobile satellite services (MSS) for no less than satellite television. Imagine a Sirius/XM-style portable network, whose receivers will likely be integrated into cellular phones, on a continental scale as soon as 20 months from now.

It's an ambitious idea, and it's not nearly a done deal. But yesterday, a proposal was introduced before the European Parliament for a timetable by which the EU would select a few choice service providers, for the precious and narrow spectrum it will be making available for the entire continent. It will require the consent and cooperation of all 27 member states - something the EU rarely gets even with less ambitious proposals.

Here's what it means: Last February, the EU established two small chunks of radio spectrum - 1980-2010 MHz and 2170-2200 MHz - as reserve space for future MSS broadcasting. Under normal EU law, member states would each have the right to select their own service providers for satellite TV and radio service for their respective countries. In fact, if the EU were to change its mind now and do nothing, that's what EU states would do next.

But there's two big problems: First of all, no single EU country is very big, geographically speaking, compared to the whole of Europe. A satellite signal covers a very broad portion of the Earth, so any service provider licensed for, say, France could probably have its signal picked up in southern Finland. Simply put, the laws of physics dictate a wide coverage area that technology cannot circumvent...unless every mobile TV receiver in Europe were custom-built for each member country. (If you're thinking like a manufacturer of DVD consoles, you might not be too opposed to trying that.)

Even if France's signal and England's and Bulgaria's and all the others could be picked up everywhere else - which, if you think about it, will be the case anyway - Bulgaria's service provider wouldn't want its signal overlapping England's. And that leads us to the second big problem: There's not enough MSS spectrum available in the 2 GHz band to go around.

So the European Union is stepping in, or at least attempting to. But in order for member states to allow it to do so, it has to formally present its case to those states for why it has the authority to do so. Imagine if, under a different style of US constitution, in order for the federal government to make its case for regulating the public airwaves, it had to get all 50 states' consent to giving up their own rights to do so individually.

Thus a large part of the EU proposal yesterday explains - as it must do under European law - why it's claiming the authority to propose a national selection process for MSS providers.

For its claim to qualify as valid, it has to meet two tests under the EU constitution. First, the claim must meet the Subsidiarity Principle: essentially, that the nature of the job at hand means it can be performed better by the EU than by all the 27 states acting independently. In other words, the EU has to prove it can do the job not because it's better at these sorts of things, but because the problem at hand makes a single body better suited to the task.

Here is where the EU has physics on its side: Satellite signals cover broad territory, and states' boundaries do not. "Selection and issuance of rights over the same spectrum to different satellite operators in different Member States would prevent satellites from covering their natural footprint," the EU proposal reads, "which by nature covers a large number of countries; it would risk fragmenting the satellite communications market and eliminate the natural advantage of satellites compared to other modes of communication. The mobile character of the services involved also means that citizens travelling in the EU should benefit from the availability of such services throughout the EU."

Second, the EU's case must meet the Proportionality Principle. This means it can't claim more authority than it needs to do the job...and once the job is done, it steps out of the way. In other words, it can't appoint a permanent commission like the FCC.

In making that part of the case, the EU goes on, "The proposal will create a mechanism for coordinating the selection and definition of certain conditions to be attached to rights of use of spectrum. It will not touch upon the right of Member States to grant the authorizations to use the spectrum or to attach specific conditions applying to the provision of services in areas which are not harmonized. Member States will be closely involved in elaborating the details of the selection procedure."

Here is where critics say the EU's case may fall apart. In order to win the authority to drive the MSS adoption process, the EU is limiting itself to driving the selection process for prospective service providers. Once that job is done, it's leaving it up to member states to apportion per-country licenses to those companies, for channels which the EU would already have selected as well.

On the one hand, it doesn't make sense. In order to sell its plan, the EU is leaving open the option for member states to deny licenses. But assuming a state does so, how could it block the reception of a signal from a service provider whose license was denied? That might take a technological solution...which brings up the whole "per-country" manufacturing option for MSS receivers again.

On the other hand, only such a hare-brained scheme might just work, because member states don't want to be perceived by their citizens as ceding any part of their authority to a federal institution. Giving them the right to say "no" could be a kind of ceremonial concession, not unlike the establishment of a constitutional monarchy where the monarch is essentially a face on a coin - which is a state of affairs not unfamiliar to member states.

"Since industry so far could not agree on a single standard for mobile TV, commercial launches of mobile TV are delayed," reads a statement from the EU's central authority in Brussels last month. "Europe's competitors, most notably from Asia, have made significant progress - partly due to state intervention - and Europe risks losing its competitive edge unless sufficient momentum is achieved. This is why there is a need to develop a 'blueprint' for mobile TV in Europe."