By Adriana Mutu
Department of Communication Studies ,
Abat Oliba CEU University
Following the privatisation of former state-owned enterprises and the liberalisation of markets, National Regulatory Authorities (NRAs) have become key institutional players in the governance of various sectors such as finance, telecommunications, broadcasting, postal services, energy, transportation, competition, food safety, and health care, etc. Much of the academic literature examines why governments allow the creation of independent national regulatory authorities, and how these bodies retain their independence, especially given politicians’ incentives to reassert control over them. In contrast to the rich literature on the regulation of utility sectors, the number of studies dealing with the political aspects of audiovisual regulation is very limited.
The emerging regulatory models for the audiovisual media sector in the age of digital convergence has stimulated the academic and policy debates on the challenges and implications for national media regulators in charge of safeguarding an independent, pluralistic media environment. The audiovisual media industry is discussed in the Digital Single Market Strategy, in the issues of territoriality and geo-blocking for content. Most of the policy debates focus on digital technologies and the role played by regulatory agencies in documenting the changes of patterns in consumption, and in providing fair access to content and platforms. As emphasised in prior research, the digital revolution has ‘undermined the traditional justifications for structural regulation of the mass media’. In addition, the digital revolution has ‘changed the factual assumptions underlying the practices of freedom of speech’, as it ‘drastically lowered the costs of copying and distributing information, it made it easier for content to cross cultural and geographical borders, and it lowered the costs of innovating with existing information. Lowering the costs of transmission, distribution, appropriation, and alteration of information democratises speech. Speech becomes democratised because technologies of distribution and transmission are put in the hands of an increasing number of people and increasingly diverse segments of society’.
The advent of new digital technologies raises significant challenges for national governments and regulatory authorities concerning the control of informational capital. While the digital age ‘greatly expands’ the possibilities for freedom of expression, independence and pluralism, new technologies can also produce novel ‘methods of control that can limit the freedom of speech’. Relatively little systematic work has been done to investigate the policy implications of regulating the audiovisual media industry in the age of digital convergence. Several questions remain unanswered. What is the impact of digital technologies and convergence on media independence, pluralism and freedom of speech? What are the challenges for traditional models of media governance, legislation and rulemaking in the context of the European Commission’s new Digital Single Market strategy?
Against this backdrop, this essay has a critical concern with providing a preliminary assessment of the impact of digitalisation on the traditional modes of media governance across the European countries where convergent national media watchdogs have been established. The converged regulator model is based on merging regulatory agencies responsible for telecommunications, information technology, broadcasting, and postal services under the authority of a single entity. The convergent structure of the regulatory framework can be seen in the various tasks undertaken by the regulatory bodies. Convergent media regulators share either complementary or unrelated powers, with varying levels of competencies over the sectors.
For instance, as illustrated in prior research, the regulators in Finland and the UK are responsible for tendering and licensing, and for monitoring and sanctioning media under their authority. The Italian media regulator is not responsible for tendering and licensing. In terms of dissimilar powers, such as exercising authority over the content of traditional print or online press, only NRAs in Italy and Hungary regulate all media sectors. As listed in the ICT Regulation Toolkit developed in cooperation with the International Telecommunication Union (ITU), the key advantages of converged regulators are: avoiding duplication of functions and costs of regulation, downsising the overlap between various sectors, and the internal institutional flexibility. On the contrary, key disadvantages are the loss of transparency, the decreased level of accessibility to the consumer, and delays in the adoption of policies caused by long negotiation processes due to sectors’ divergent agendas.
By comparing the institutional design choices of national media regulators across Europe I have identified ten models of convergent NRAs in eight countries (Andorra, Austria, Bosnia-Herzegovina, Finland, Hungary, Italy, Switzerland, and the UK) and two British Overseas Territories (Gibraltar and Isle of Man). In Andorra, the Andorra Telecom is the national telecommunications operator which acts like a converged regulator. Created in 1975, it is responsible for managing the technical infrastructure and national broadcasting networks related to radio and Terrestrial Digital Television (TDT), providing mobile and fixed voice, transmission data, Internet, and other supplementary services for domestic and international telecommunications. In Austria, KommAustria (2001) is the convergent regulatory authority responsible for all electronic media in the broadcasting sector, fulfilling a wide range of functions such as establishing, maintaining frequency allocation and licensing procedures, guaranteeing and providing access for private broadcasting companies to broadcasting infrastructure owned by the public broadcaster ORF. The media regulator is also in charge of the implementation and development of digital broadcasting.
In Bosnia-Herzegovina, the Communications Regulatory Agency established in 2001 combines the competences of the Independent Media Commission and the Telecommunications Regulatory Agency, which had previously operated separately. Modelled after similar institutions in Europe, the agency’s competences are: development and promotion of rules, the licensing of operators in the broadcasting and telecommunications sectors, the planning, management and allocation of the frequency spectrum, the implementation of technical and other standards related to quality, and the establishment and maintenance of license fees. In Finland, the converged Finnish Communications Regulatory Authority (1988) covers electronic communications, the transmission for broadcasting services, and postal services. It carries out duties under the regulations of the Ministry of Transport and Communications.
In Hungary, the National Media and Infocommunications Authority was established in July 2010 as the country’s new regulator responsible for overseeing all sectors of the media, telecommunications and postal services. It replaced Hungary’s two former regulatory agencies—the National Radio and Television Commission, the media regulator, and the National Communications Authority, the telecommunications regulator—with a single, convergent body to manage all media sectors and areas of media regulation. In Italy, the converged Communications Authority (established in 1997) covers issues related to transmission for broadcasting services and ancillary services (must-carry etc.). In addition, it also regulates the publishing sector. In the UK, the Office of Communications was established in 2003 as a convergent entity, after the merger of five pre-existing regulators responsible for specific areas of media and telecommunications regulation. It has regulatory duties across most of the converging telecommunications, broadcast television and radio, and postal sectors. It also acts as an advisor to government in areas such as media ownership rules and public service broadcasting and oversees implementing and enforcing legislation.
In Switzerland, the Federal Office of Communications (1992), which forms part of the Federal Department of the Environment, Transport, Energy and Communications, is a converged regulator supervising the electronic communication. In Gibraltar, the Gibraltar Regulatory Authority (2000) is the statutory body responsible for regulating telecommunications, radio communications and broadcasting transmission. Its Broadcasting Division is responsible for the granting and enforcement of licenses to broadcasters and issuing codes of practice. In the Isle of Man, the Communications Commission (1984) is a statutory board of the government, responsible for regulating telecommunications and broadcasting. The commission handles complaints, issues warning, imposes fine, revokes and suspends licenses. It has consultative powers on the proportion of programmes broadcasted in the Manx Gaelic language.
Different models of NRAs for broadcasting have been established in Europe. Indexing their main features, emphasising the differences between them, and comparing the outcome in decision-making processes add important new data for measuring the performance of media regulatory institutions.
 There are important distinctions between the independence from government, independence from stakeholders, and independence in decision-making of regulatory agencies. Independence from government refers to the regulator’s formal rights to make independent decisions, without governmental constraints or pressures, and it is measured with methodologies developed to study Central Banks. Independence from stakeholders is threatened when there is a risk of regulatory capture by the regulated parties, when the industry uses asymmetric information and misinformation to manipulate the regulator, or when the regulator has private interests in the sector. Independent decision-making relates to the regulatory competencies of agencies. Much of the current literature pays particular attention to the major distinction between formal (de jure) and actual (de facto) independence. Whereas formal refers to legal requirements for independence, the notion of actual independence refers to the effective independence of agencies during their day-to-day regulatory activities. See Gilardi, F. (2008). Delegation in the Regulatory State: Independent Regulatory Agencies in Western Europe. Cheltenham, UK: Edward Elgar Publishing; Gilardi, F., & Maggetti, M. (2011). The Independence of Regulatory Authorities. In D. Levi-Faur, Handbook on the Politics of Regulation (pp. 201–214). Cheltenham: Edward Elgar.
 See Mutu, A. (2018). The Regulatory Independence of Audiovisual Media Regulators: A Cross-National Comparative Analysis, online first, European Journal of Communication, pp.1-20. https://doi.org/10.1177%2F0267323118790153; Mutu, A. (forthcoming, 2018), The Institutional Design of Audiovisual Media Regulators: Evidence from Central and Eastern Europe. Paper accepted for publication, the Yearbook of the Institute of East‐Central Europe.
 Arino, M. (2004). Competition Law and Pluralism in European Digital Broadcasting: Addressing the Gaps. Communications and Strategies, (54), 97-130; Barzanti, F. (2012). Governing the European Audiovisual Space: What Modes of Governance can Facilitate a European Approach to Media Pluralism? Centre for Media Pluralism and Media Freedom/RSC; Centre for Media Pluralism and Media Freedom (2012). A Definition of Pluralism in the Media Sector. Comparing the results of the European Projects with an Interdisciplinary Approach. Workshop report; Donders, K., & Pauwels, C. (2008). Does EU Policy Challenge the Digital Future of Public Service Broadcasting? An Analysis of the Commission’s State Aid Approach to Digitization and the Public Service Remit of Public Broadcasting Organizations. Convergence, 14(3), 295-312.
 The key question in the digital age is who controls the technologies of distribution. See Balkin, J, M. (2004), op. cit.
 See Balkin, J, M. (2004), op. cit.
 See Balkin, J, M. (2004). Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society. 79 N.Y.U. L. Rev. 1.
 Brouillette, A., van Beek, J., Wanstreet, R., Coyer, K., & Bognár, E. (2012). Hungarian Media Laws in Europe: An Assessment of the
Consistency of Hungary’s Media Laws with European Practices and Norms. Retrieved from SSRN: http://ssrn.com/abstract=2568584.
 See ICT Regulation Toolkit (2006), op. cit.
 Nieminen, H., & Trappel, J. (2011). Media Serving Democracy. In J. Trappel, W. A. Meier, L. D’Haenens, J. Steemers, & B. Thomass,
Media in Europe Today (pp. 137-151). Bristol/Chicago: Intellect.