I have been reading the Draft this morning and here are some first thoughts and impressions (more to come).

* The first thing that puzzles me has to do with the highly controversial distinction between linear and non-linear services. This distinction is based on choice, control and impact (Recital 28). The proposed Directive makes plenty of references to such distinction, but only in the Recitals. In the text of the proposal, however, the term �non-linear services� is only used once, and this is to define them in Article 1. After that, the distinction seems to be forgotten and only �audiovisual media services� is used. This is fine for those of us who were against the distinction in the first place, but it is confusing. Recital 28, for example, states that the Directive imposes lighter regulation on non-linear services, which only have to comply with the basic rules provided for in Articles 3c to 3h (these deal with protection of minors, incitement to hate, promotion of European works, commercial communications and sponsorship). Why is this not specified in the actual text? Recitals do have legal value, mainly for the purposes of interpretation, but further clarification regarding the application of a lighter regime for non-linear services is still needed.

* All media service providers, including non-linear ones, need to promote, where practicable and by appropriate means the production of and access to European works (Article 3f). The reason why this requirement applies to non-linear services is given by Recital 35: �non-linear audiovisual media services have the potential to partially replace linear services�. Now, this is weak and unconvincing. Regulation based on �potential to partially� do things is, put simply, bad regulation. Another enduring (but not new) problem in this respect is that of what does �where practicable� mean.

* For the first time the Draft Directive refers to regulatory authorities. Article 23b reads:

1. Member States shall guarantee the independence of national regulatory authorities and ensure that they exercise their powers impartially and transparently.
2. National regulatory authorities shall provide each other and the Commission with the
information necessary for the application of the provisions of this Directive.

The call for independence and transparency of national regulators should be welcome, as with few exceptions, national broadcasting authorities in the Europe of 25 cannot brag much about their independence (assuming such ideal is indeed possible, of which I am skeptical). The requirement in paragraph 2 to exchange information among NRAs and the Commission might be less welcome, though, as it will substantially increase the workload of national regulators. It is also unclear whether this will be for the better, how this information shall be exchanged and with what purposes. Would it be advisable to create an equivalent to the European Regulators� Group for audiovisual media? Harmonisation and consistency across the internal market is certainly one objective but what should be the role of the Commission in this regard? The regulation of audiovisual media remains, primarily, a national matter.

* Finally, rules on jurisdiction (possibly one of the most difficult issues in an on-line world) remain vague and uncertain. For example, the Draft Directive does not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States. What does �standard consumer equipment� mean? Recital 21 leaves the definition in the hands of �competent national authorities�. Clearly the TV set and the PC are pretty standard, but is that so also with mobile telephony platforms? What about Ipods, PDAs or many other platforms (existing or to come) that can be used by consumers to access content? On which basis will national authorities decide and is there a risk of fragmentation here?.

* There are a some typos too�but let�s not be too picky.

So, there are plenty of questions on the table and more to come. OW has been following this debate closely and we will continue to do so as the Draft makes its way through the Council and the Parliament, so stay tuned!.