SCOTLAND's PUBLIC SERVICE SPECTRUM Papers for Ofcom's

SCOTLAND’S PUBLIC SERVICE SPECTRUM Papers for Ofcom’s DDR Consultation from Scotland’s Public Service Spectrum Forum hosted by the Cross Party Culture and Media Group of the Scottish Parliament with the support of the University of Strathclyde and held at the Scottish Parliament on 14th February 2007. (For details of the agenda and outcomes go to http://gs.strath.ac.uk/content/view/224/130/)

Introduction and Background In Scotland the consultation on Ofcom’s Digital Dividend Review has been extensive and wide-ranging involving many meetings, presentations, papers and briefings to discuss digital spectrum, wireless broadband, rural services, community access and local television.

These meetings have taken place from 2005 onwards as the DDR programme has come into view. They have been held with the support and participation of local authorities, enterprise companies, voluntary sector organisations, production companies, research institutes, media access centres and voluntary arts associations taking place in the Scottish Borders, Dumfries and Galloway, Fife, Lothians, Strathclyde, Perth & Kinross and Inverness – assisted by Highlands & Islands Enterprise.

Many representatives of local authorities, council service providers, universities and colleges, community and voluntary organisations and community media groups have travelled to these meeting from further away (from Aberdeen, Aberdeenshire, Angus and the Western Isles). Many individuals and organisations have attended, addressed and contributed to these meetings and to follow-up papers. Reports of these meeting s as well as those presentations testing the shape of Local TV requirements in Scotland have found their way into ACTO – local public service television directories. These meetings informed the Local Channel Atlas (Scotland). Papers have been published and circulated regularly as on-going contributions to the debate on spectrum use with Ofcom and the Department for Culture, Media and Sport, the DDR consultants Analysys and with the Scottish Executive.

An annual Local TV Forum has been held in Edinburgh in March 2005 and 2006 organised with the support of CoSLA (Confederation of Scottish Local Authorities). Here Local TV contributions have involved the UK’s RSLs and the BBC’s West Midlands ‘ultra local TV’ as well as Slovakian and Eastern European Local TV experience. Digital engineering for Local TV has featured strongly in discussion at these Forum’s and in-between times (notably to resolve the best solution among add/drop, local multiplex and interleaved spectrum options). At meetings and throughout the last two years representatives from Ofcom, arqiva, ngwireless and Terayon have been heavily involved in checking and contributing to the evolution and reconciliation of the add/drop solution with DTT requirements.

Several ‘Local TV’ campaigns have started in Scotland often finding a Scottish and UK wide responses. The Christmas 2005 Local TV Parlour Game found council staff in the Borders and later in Dumfries and Galloway keen to forego a ‘quiz’ channel on their TVs in favour of a Local TV channel using unwanted quiz or shopping channel spectrum for their area.

The Campaign for Local TV was launched as an e-petition by the Broadcasting Trust (on http://www.commentonline.co.uk/survey/ ) to address ‘local demand’ for the Analysys DDR studies with responses from across the UK (with comments reproduced in ACTO 16).

The Campaign for Local TV confirmed that quiz and other more commercial mux channels were widely disliked - ‘unwanted’ and should be dropped in favour of Local TV introduced area by area (possibly using add/drop to ‘release’ the mux capacity). The overwhelming view was that these channels wasted spectrum through being poorly watched.

A recent Scottish Parliament e-petition was raised on behalf of Media Access Projects Scotland (MAPS) by its co-Chair Graeme Campbell urging the Scottish Parliament to make representations to the Scottish Executive on behalf of spectrum and local and new Scottish channels.

Petition by Graeme Campbell, on behalf of MAPS (Media Access Projects Scotland), calling for the Scottish Parliament to urge the Scottish Executive to seek clarification on the ownership of electromagnetic broadcast spectrum in advance of the proposed spectrum packaging and award process and to seek assurances that capacity will be reserved on the digital multiplexes to enable local and new Scottish television channels originating in Scotland to be broadcast to Scottish viewers receiving the public service broadcasting channels.

http://epetitions.scottish.parliament.uk/view_petition.asp?PetitionID=150

Meeting and discussion with the Scottish Parliament Two meetings have been held with the Scottish Parliament Cross Party Media Group to discuss the digital dividend (October 2006 and February 2007). These have addressed spectrum ownership and trading, public access to spectrum and new and Local TV services from and for Scotland. The earlier October 2006 meeting included a presentation reproduced in the ACTO COMPILATION (for access details see below).

The second Cross Party Culture and Media Group meeting – Scotland’s Public Service Spectrum - was held on 14th February with the support of Strathclyde University, following consultation with Public Voice (conducting a UK wide survey of public DDR stakeholders).

The Scottish Parliament offered an opportunity for a wide gathering of social and public stakeholders to address Ofcom’s Digital Dividend Review Consultation and to report back to Ofcom, to the Scottish Executive, The Scotland Office, the Department for Media Culture and Sport and to other public agencies with a responsibility or an interest in the future access and use of digital spectrum in Scotland.

Several papers were presented at Scotland’s Public Service Spectrum Forum following an introduction by Alan Stewart, Head of Telecommunications and Broadcasting at Ofcom Scotland.

Delegates from the SPSS Forum then met (7th March) representatives from from the Scottish Executive - Anne Dagg (Arts & Creative Industries Policy Unit Education Dept: Cultural Policy Division) and Harry Emambocus (Telecoms Policy Team) - at a briefing meeting at the Department of Geography and Sociology, University of Strathclyde.

Extracts follow from papers presented at Scotland’s Public Service Spectrum which were subsequently circulated in their entirety to the agencies mentioned.

These papers have been reproduced in full in ACTO – local public service television directories in the editions indicated. ACTOs can be downloaded in .pdf format from:- http://www.maccess.org.uk/members/ilt.html

Extracts from the Scotland’s Public Service Spectrum Forum

David Goldberg legal consultant and researcher (full paper appears in ACTO 28)

….. Nicol Stephen MSP answering Chris Balance MSP - (S2W-30005)

The Executive's understanding is that there is no defined ownership of the electromagnetic spectrum. However, regulation of telecommunications is a reserved matter and, as indicated previously, UK spectrum is managed by OFCOM, who have been empowered through UK legislation to authorise spectrum use under 3,000GHz for wireless telegraphy applications.’

Very interesting: the SE’s understanding is that “…there is no defined ownership of the electromagnetic spectrum”!!!

My suggestion at this forum today is that the question and the answer (although revealing in terms of who – doesn’t own spectrum) is misleading because [this] is a category error: characterising spectrum as if it were 19 century ether or analogising it to land or some other scarce substance.

• Spectrum isn’t a thing – invisible (19C massless ether) or visible (land)

• It can’t be owned e.g., spectrum isn’t excludable

• Think of the issue in terms of action (verb) not substance (noun), think in terms of spectrum use; there’s no Platonic ideal spectrum lurking like the shadow in the cave (!)

• Spectrum classification is a human construct; it doesn’t exist in nature

• Radio communication is people communicating using emitters and receivers: the activity is using emitters modulating at a specific frequency and receivers tuned to receive the emission to enable/facilitate communication

The matter is covered in Section 116 of the Wireless Telegraphy Act 2006 116 "Wireless telegraphy"

(1) In this Act "wireless telegraphy" means the emitting or receiving, over paths that are not provided by any material substance constructed or arranged for the purpose, of energy to which subsection (2) applies [emphasis added]

(2) This subsection applies to electromagnetic energy of a frequency not exceeding 3,000 gigahertz that- (a) serves for conveying messages, sound or visual images (whether or not the messages, sound or images are actually received by anyone), or for operating or controlling machinery or apparatus; or (b) is used in connection with determining position, bearing or distance, or for gaining information as to the presence, absence, position or motion of an object or of a class of objects. (p 7)

My claim is that radio communication - really communicating – is an activity that comes within the framework of Article 10 of the European Convention on Human Rights (freedom of expression and the right to receive). So all that Ofcom does and proposes and implements etc may be reviewed and challenged in the light of its compatibility with Article 10. Are the measures prescribed by law? For a legal aim? Necessary in democratic society? Proportionate?

(ii) The best resource for this is the publication by Article 19 Wireless Communications: Licence Requirements

The licensing regime in general and the way in which it is implemented in the circumstances of the case/situation has to be Article 10 compliant. The Human Rights Act 1998 gives effect to that Article in domestic law.

This measure could also be governed by European law: efficient and prudent use of spectrum needs to serve the cultural objectives of EU policies pursuant to Article 151 (4) of the EC treaty and should facilitate cultural and linguistic diversity as well as media pluralism (emphasis added; from Fiona Hall study).

[The] Hall study also mentions that the the Committee on the Internal Market and Consumer Protection calls on the Committee on Industry, Research and Energy, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

1. Agrees that Radio Spectrum is a key resource for many activities and important for the good functioning of the internal market; underlines that the use of market mechanisms should safeguard the interests of consumers and encourage the take up of innovative products and services; and that social, cultural and political considerations must also be taken into account in line with Article 151(4) of the EC Treaty; considers, furthermore, that audiovisual policy, the promotion of cultural and linguistic diversity and the pluralism of the media may justify exceptions from the principle of service neutrality; (emphasis added)

CULTURE Treaty establishing the European Community (consolidated text) Official Journal C 325 of 24 December 2002

Article 151 1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.

2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas: - improvement of the knowledge and dissemination of the culture and history of the European peoples, - conservation and safeguarding of cultural heritage of European significance, - non-commercial cultural exchanges, - artistic and literary creation, including in the audiovisual sector. - 3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.

4. The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.

5. In order to contribute to the achievement of the objectives referred to in this Article, the Council: - acting in accordance with the procedure referred to in Article 251 and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States.

Robert Beveridge, communications policy researcher/lecturer Napier University and VLV (ACTO 28)

OFCOM should adopt joined up regulation - just as we expect joined up government and take full account of PSB and see spectrum trading as inimical to its overall responsibilities especially in respect of its need to maintain and strengthen PSB a requirement outlined in the Communications Acts 2003 – or face judicial review.

Dave Rushton, Director Institute of Local TV and Public Interest Fellow Strathclyde University (ACTO Compilation)

Local TV Local TV requires a national plan - the add/drop solution. Interleaved Spectrum Local TV would be a waste of spectrum since very few households would receive a watchable signal in many areas or across much of the country. (p 54)

Spectrum The objective of spectrum auctions and the subsequent trading of spectrum assets is supposed to be to improve spectrum's efficient use for the benefit of society. Ofcom believe this can be achieved by enabling a market value for spectrum assets to be established and by giving some encouragement to any surplus spectrum to be traded, creating flexibility to ensure another use is found when spectrum is not required.

The efficiency objective as a general principle does have laudible aims for society - but I am not convinced that the market will minimise spectrum wastage or reduce the volume of unused spectrum.

I suggest an efficient use of any part of the electro-magnetic spectrum requires both its successful reception as well as the transmission of the signal. Spectrum is only used in communications when a signal is transmitted and when it is received or when bandwidth is kept open for telecommunications purposes. Measurement of efficient spectrum use requires there be satisfactory reception in order to establish whether or not communication has taken place. And where there is satisfactory reception spectrum is 'used' or a telecommunications link is 'open'. (p 28)

Spectrum can best be understood as involving a more equal partnership of conjoint use between transmission and reception of any spectrum use. Conjoint use allows observations and calculations to be made of efficiency which sit much more comfortably with the social rather than private ownership (or access) to spectrum. Conjoint use leads to very different conclusions than [Professor Martin] Cave's in setting out to quantify and consider regulation of 'efficient use'.

For example, a low number (we'll say 35000) viewers might watch a digital quiz channel on a commercial mux. That relatively low viewer number might be commercially sufficient for this channel. But if we look at conjoint use this channel is very wasteful of DTT spectrum. If no one at all watched this quiz channel whatsoever - at this time or forever - then the spectrum used would be entirely wasted. (p 29)

Graeme Campbell, Development Officer MiMAC and co-Director MAPS (ACTO 29)

Within Scotland, we have always been under represented in both film and television. As a result, the world has never really seen our own rich culture of stories, places and people and what is reflected back to us has a narrowness, which may show elements of Highland and Glasgow life, but rarely Fife or Dumfries and Galloway and the Scottish Borders.

Time and time again in Scotland, I come across attitudes from people who should know better, that doubt the ability of their own community to master the rich possibilities of the digital revolution and become their own producer of film and television, but doubters aside, it is happening and happening at a growing and exciting rate.

In terms of Fife, prior to the creation of MIMAC, we took the decision of developing moving image, not through the vain hope of attracting Hollywood through selling us as a tartan shortbread tin, fantasy for location work, but by investing in our own people, by providing the means for them to produce their own film and television through the new digital technologies. (p 3)

I have only touched on what MIMAC does but I would suggest that if we are able to do this in a region of Scotland which is not in the media mainstream, on modest resources, then the rest of the country could?

The situation though is not perfect, for although we can produce, difficulty lies within distribution and that is why local TV is such a crucial development.

MIMAC along with Pilton Video is part of ‘Media Access Projects Scotland’ and we are campaigning for more support for this sector, including support for regions that do not have media access projects, so I am delighted to be able to lend support to ‘Moving Image Borders’, who are here today and planning to launch shortly.

So with the programme makers in place, the Executive’s commitment (through Local Authorities) to Media Literacy, I suppose the only remaining question is what delivery system to use for our local TV? (p 5)

Susan Neal, Communications Officer Dumfries and Galloway Council (ACTO 27)

Government cannot expect to charge for spectrum and for it not to affect local authorities. There will be a cost. Public purposes for spectrum are not always immediately obvious because LAs often buy services from commercial providers, but will these public purposes lose out to big business?

Geographical concerns – UK wide auctions, but local transmission and use – LAs like DGC might be able to use spectrum wasted by the purchaser (ie bought for London and not used in DG) – Some geographical auctions for interleaved spectrum are suggested. Why not do more geographical allocations? – Should LA’s benefit from revenues from spectrum sold for use in their area?

Receiving revenue from spectrum sales in their area would help local authorities offset the cost of buying services from the private sector. LAs could form alliances with neighbouring authorities to purchase services and/or facilitate private sector to provide services.

Trisha McAuley, Head of Corporate Resources, Scottish Consumer Council (ACTO 27)

Concerns That the focus on a market-driven approach, based on economic muscle, will consolidate the position of those with more buying power, prevent the development of a true level-playing field, and as a consequence stifle innovation.

That the competition theory that is being applied is based on empowering consumers to choose between traders. But this is a market where the end user i.e. the viewer, has no influence over who provides the service into their homes. That we will see a repeat of the situation we had in Scotland with broadband a few years ago where traders cherry-picked the profitable areas and consumers in rural Scotland were left at the mercy of complex market forces and a reluctance of the industry to invest.

That the social value attributed to the spectrum by the consumers who took part in Ofcom’s own research has not been reflected in its analysis.

Questions While maintaining economic competition among specific traders, why can Ofcom not ringfence more parts of the spectrum for specific purposes? This would create a series of smaller trading environments, each with its own level playing field. And why could these trading environments not reflect the social values that consumers have expressed while still operating in a competitive, albeit protected market environment? I would argue that these markets might do more to promote innovation than ones dominated by a few commercial giants.

What is the potential for the spectrum to be used, in conjunction with new technologies, to ensure 100% reach to our remote and rural areas and ensuring true universal access to the economic and social lifeline that is the communications market in Scotland?

And why can’t some of the digital dividend be used to ensure 100% TV coverage after analogue switch-off – instead of 98.5% - an overall UK target that may be weighted against Scotland in the light of our topography? Will there be any licence conditions to ensure adequate levels of broadcasting in the nations? Will the market always be defined as a UK one and therefore fail to take account of market consolidation and dominance within the specific Scottish broadcasting and cultural environment? And could some of the dividend not be used to explore ways of using new technology to enhance accessibility to the market for disabled people?

And will Ofcom commit now to regularly reviewing the use of the spectrum from the perspective of consumers, including those who are denied access to the market? And publishing transparent feedback on how the market is working? In the absence of true competition at the level of viewing and listening, reputation will be a key incentive for business to behave.

Jaqui Devereux, Director, Community Media Association and Javed Sattar AWAZ FM (ACTO 29)

The distinctive feature of community media is that communities themselves access and embrace media in order to broadcast for rather than to the community. In other words, communities doing it for themselves! The sector has huge numbers of volunteers and trains thousands of people every year in media, ICT and other transferable skills. One quarter of the CMA membership is based in Scotland.

The UK government has acknowledged the social and economic impact of the sector and its real benefits in terms of community cohesion, social inclusion and giving people a voice.

The Digital Dividend refers to the release of spectrum for other uses following Digital Switch Over in 2012. We at the CMA believe it is vital that the future use of this spectrum benefits us all as citizens and communities and that it enables further community development through free access for communities to use media to inform, include and give voice to their aspirations. (p4)

The birth of radio and television was here in Scotland. We urge you, and our colleagues throughout the UK, to respond to the Ofcom Consultation, whether in detailed technical terms, or just to say “No”. The only way to preserve spectrum as a public asset is by us all making it plain to Ofcom and to government that the “total free market” approach is neither economically and socially effective, nor morally sustainable. (p 6)

David Byers and Karen McLeod Competitive Place Team, Scottish Enterprise, D&G (ACTO 31)

Scottish Executive Dumfries and Galloway has however given consideration to the demonstrated commercial viability of the first generation community wireless solutions within the region to explore the prospect of an alternative wireless network architecture which could address the new digital divide.

A Pilot has been undertaken to: • Relay broadcast TV channels and locally served video on demand • Voice over IP • Broadband internet access with e-mail access and open office application suite using home TV’s as a thin client PC

The results of these initial trials have demonstrated that: • Each of the component elements of the product set (TV, video, Voice, data) can be successfully and acceptably delivered over a wireless network • Services can be supplied directly to home TV’s which when supplemented with a set top box and a wireless keyboard eliminates the requirement for in home PC equipment helping to address social inclusion issues (p 4)

Gavin Yates, Head of Communications , SCVO was unable to attend but his paper was later circulated (ACTO 29)

The emergence of community digital television bandwidth could have some significant gains for community groups across Scotland. In terms of increasing awareness of different community projects, making potential volunteers aware of opportunities and to increase the transparency of the sector as a whole.

Civil society organisations There are approximately 50,000 community organisations in Scotland, employing 120,000 people and making up a sizeable percentage of GDP. Although media communication is essential to the community sector (extending networks and publicising issues), the complexity and expense of television production can deter community groups from participating in community television. However, digital television opens up new possibilities, such as short form programming and data delivery.

Community television has a role to play in teaching and assisting civil society organisations to use digital media technology to their advantage.

Without the necessary allowance of bandwidth these vital advantages are diminished. (p 6)

Fiona Campbell, Executive Officer Voluntary Arts Association

Contribution summary: Fiona made the link between local and community broadcasting and the work of the members of the Voluntary Arts Association. In particular Fiona addressed the obvious connections between the local cultural entitlements in the Scottish Executive’s Culture Bill and representing these entitlements in programming about local cultural events as well as the local cultural events talking a broadcast form.

Twenty eight members of the Voluntary Arts Association meeting at their AGM (2nd February) made submissions to Ofcom’s Digital Dividend Review as well as to the Scottish Executive’s Culture Bill consultation.

Their contributions were as follows.

For The Digital Dividend Review Consultation response to Ofcom:

Ofcom Question 5: Do you have any comments on our analysis of the choice between a market-led and an interventionist approach to the release of this spectrum? Do you agree with the analysis of different mechanisms for intervening to remedy potential market failures? ANSWER: The consumer research conducted by Ofcom for the DDR finds consensual approval from the respondents for universal access to new digital services including Local TV on the released spectrum. Furthermore, the respondents indicate that the commercial digital channels are often of poor quality and wasteful of spectrum. The respondents require either Government or the regulator to intervene to prevent commercial operators from dividing the spectrum into markets leaving some users unable to receive services. We support the consumer research and not Ofcom’s recommendation favouring markets.

Ofcom Question 14: Do you agree with our proposal to auction licences for the use of the available UHF spectrum? ANSWER: No - the broadcast spectrum is a public asset and should be reserved for public purposes and in part used to address the uneven introduction of broadband by developing wireless broadband for the rural areas, regions and nations. All spectrum should remain in the public domain and be regulated for services with a universal and genuine public purpose.

For the Culture Bill on Local Authority Broadcasting Licences

Consultation Question 6.4 -

* Do you agree local authorities should have a general power to broadcast information about their activities?

* Do you think it is necessary to give authorities this power in this Bill, or should local authorities be left to rely on 'the power to advance well-being' in section 20 of the Local Government in Scotland Act 2003?

Yes - local authorities should have the power to broadcast guided by the terms of the Local Government in Scotland Act 2003 to advance well-being and not be restricted by the powers of the Local Government England Act of 1972 either by being excluded from holding licences because they fall outside the scope of the 1972 Act or to by being restricted by the 1972 in what they might broadcast.

Further discussion on the requirement for ‘joining up’ legislation and empowerment for local and community broadcasting with local authority cultural entitlement responsibilities was discussed at the Culture Bill stakeholder meeting held at the Edinburgh Conference Centre on 21st February.

On 8th March 2007 Cathy Peattie MSP put the following motion before the Scottish Parliament on The Future of the Digital Spectrum:

S2M-05721 Cathy Peattie (Falkirk East) (Lab): That the Parliament notes the proposals for the disposal of the digital spectrum, largely by sale to the highest bidder, when it is released as a result of the cessation of analogue television; is concerned about the inadequacy of proposed safeguards regarding its future use; notes that, among the potential uses of this digital dividend, there are many which have significant implications for devolved issues, particularly for the cultural content of programming, for news coverage of Scottish current affairs, for Scottish creative industries and for other aspects of the Scottish economy; further notes that there is great potential for use of the digital spectrum at a more localised level, and believes that the digital dividend should be used to strengthen and extend the public service use of the spectrum by ensuring that capacity is reserved on digital multiplexes throughout Scotland to enable the growth of local and new Scottish television channels.

The editions of ACTO cited in the Scotland’s Public Service Spectrum submission are ACTO 27, 28, 29, 31 and ACTO COMPILATION.

These can be downloaded from http://www.maccess.org.uk/members/ilt.html

Submitted to the Ofcom DDR Consultation 11th March 2007 by Dave Rushton, Public Interest Fellow, Department of Geography and Sociology, University of Strathclyde http://gs.strath.ac.uk/content/view/209/112/