Monday, 16 September 2013

Italian NCA rejects RTI's complaint against Sky

"There are no conditions to accuse SKY of abusing a dominant position in relation to the purchase of the TV rights for the football tournament matches of the UEFA Champions League in the seasons from 2012 to 2015, and for broadcasting the World Cups in 2010 and 2014. The Antitrust decided this, closing the investigation initiated against the company in November 2010 concerning TV rights for the World Cup and extended to July 2011 for the purchase of TV rights for the Uefa Champions League for the seasons 2012-2015." (see AGCM's press release).

Court' s decision and AG's Opinion in Sky Italia case

The CGEU decided in case C-234/12 (operative part of which follows:

"Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), as well as the principle of equal treatment and Article 56 TFEU must be interpreted as not precluding, in principle, a national rule, such as that at issue in the main proceedings, which lays down shorter hourly television advertising limits for pay-TV broadcasters than those set for free-to-air broadcasters, provided that the principle of proportionality is observed, which is a matter for the referring court to assess."

See also AG Kokott's Opinion here.

AGCM - AGCOM protocol signed

AGCM - AGCOM protocol signed (see Italian NCA's press release and protocol in italian).

Telecom Italia fined with 103,7 million euro for abuse of its dominant position in network infrastructure

"Telecom Italy abused, using two distinct behaviours, the dominant position it holds in the provision of wholesale access to the local network and broadband, hindering the expansion of competitors in markets for voice telephony services and broadband internet access. The Autorità Garante della Concorrenza e del Mercato established this, which then warned the company about repeating such behaviours in the future and penalised it with a total fine of 103.794 million Euro" (see AGCM's press release).

Polish NCA approves NETIA taking over a part of the UPC network

"The President of the Office of Competition and Consumer Protection (UOKiK) has granted approval for the takeover by Netia of a part of the network providing television, Internet and telephone access services in buildings where these services were formerly provided by UPC and Aster prior to the merger of both these operators" (see press release).

FICORA's 2012 annual report issued

FICORA's 2012 annual report issued.

FICORA issues opinion on personal data contained in consumer billing

"The Finnish Communications Regulatory Authority (FICORA) has issued an opinion according to which the same principles should be applied to the protection of bill itemisation data while it is being transferred and handled as are applied to the protection of personal data related to payments transfers" (see related page here).

Expert Committee issues favourable opinion on introduction of VDSL2 technology into France Telecom's copper local loop

"On 26th April, the Expert Committee on Copper Systems - an independent committee whose members include France Telecom, network operators and equipment suppliers - voiced its approval for the introduction of VDSL2 into the France Telecom copper local loop" (see ARCEP's press release).

BIPT decides to lift universal service obligations relating to the provision of public pay phones

The Belgian NRA decided to lift  universal service obligations relating to the provision of public pay phones (see related page here).

Italian NRA approves fixed call origination, transit and termination charges

AGCOM approves fixed call origination, transit and termination charges (see press release, in italian).

Italian NRA consults on fibre products' tarrifs that fall into markets 4 and 5, as well as on the tariff of end-to-end service product

Italian NRA consults on fibre products' tarrifs in relation to market 4 and 5 as well as tariff of end-to-end service (see press release).

Greek NRA consults on BU pure LRIC model in fixed call termination

Greek NRA consults on BU pure LRIC model in fixed call termination (see press release and document, in greek).

Commision's Art. 7 Comments to the Irish NRA's review of the wholesale broadcasting transmission services market

Commision's Art. 7 Comments to ComReg's review of the wholesale broadcasting transmission services market:

"Need to monitor the effectiveness of ex ante regulation

The market for broadcasting transmission services is no longer recommended by the Commission for ex ante regulation, as greater platform competition and fewer capacity constraints, mainly due to the transition from analogue to digital transmission platforms, should render it effectively competitive.

The Commission notes, however, that the terrestrial broadcasting markets in Ireland present strong features of lack of competitive conditions, with only one vertically integrated supplier so far, and therefore appear to warrant ex ante regulation.

However, the Commission notes also that — following successful completion of a contract award process that would be conducted by the Broadcasting Authority of Ireland — entry of a number of commercial DTT multiplex operators on Market B may occur within the timeframe of the review and could therefore impact the competitive dynamics on the market.

The Commission therefore invites ComReg to closely monitor the development of competition in the two markets (and in particular Market B) in terms of infrastructure and services competition at both the retail and wholesale level and re-assess the need for and appropriateness of the remedies imposed if necessary."

Commission opens phase II procedure on Austrian NRA's review of the wholesale terminating segments of leased lines market

The European Commission opened phase II procedure on Austrian NRA's review of the wholesale terminating segments of leased lines market (see art. 7 comments & decision here).

ARCEP issues decision on cost accounting obligations in mobile call termination

ARCEP issues decision on cost accounting obligations in mobile call termination (see here in French).

BEREC's Opinion on German FTRs case

"Following its role and rules BEREC adopted its opinion, stating that the expressed serious doubts by the European Commission are justified" (see press release).

EU and Switzerland sign Cooperation Agreement in Competition Matters

EU and Switzerland sign Cooperation Agreement in Competition Matters (see Commission's press release).

ECN Brief's 02/2013 interesting bits

- Portuguese NCA publishes Guidelines on Handling of Antitrust Proceedings (see here).
- Portuguese NCA adopts Guidelines on Fines (see here).
- Austrian NCA revises manual on leniency (see here).
- New Belgian Competition Authority and new Competition Act (see here).
- Swedish Market Court upholds City Court’s Decision finding Abuse in Telia Sonera Case (see here).

Nordic and Baltic NRAs call for labelling scheme on mobile receiver performance

"The Director Generals agree in addressing the European Commission on an important issue for the consumers both in the Nordic/Baltic countries, as in the rest of Europe: Experiences from all the countries are that smartphones vary a lot when it comes to receiver performance. The actual device or mobile phone used, has a great impact on reception quality at the users end.

Antennas are also a crucial part in any wireless communication device, and the design can be very complex in modern smart phones due to a number of limitations, one of them being space, the Directors stated.

Mobile phone reception performance can vary greatly from model to model, and depends as well on how the user holds the phone during operation. This variation is not satisfactory, as it is complicated for the consumer to get information about this prior to buying the device.

The Nordic and Baltic countries find it crucial with consumer transparency on the mobile phones receiver performance. Therefore, the group ask the Commission to establish a labelling scheme to improve transparency, like other areas (ie energy consumption)." (see the press release).

FTC issues modified final order settling alleged anticompetitive acquisition of Hitachi Global by Western Digital

"Following a public comment period, the Federal Trade Commission has approved and issued a modified final Decision and Order settling charges that Western Digital Corporation’s proposed acquisition of rival Hitachi Global Technologies Ltd. would have been anticompetitive in the market for hard disk drives used in desktop personal computers" (see press release).

Wednesday, 8 May 2013

BNetzA issues Annual report

The German NRA issued its 2012 Annual report (see the press release).

Commission consults on amended GBER on state aid measures

The European Commission launched its consultation on its draft amended General Block Exemption Regulation (the GBER) on state aid measures (see related page).

Commission sends SOs to Motorola on potential misuse of mobile phone standard-essential patents

"The European Commission has informed Motorola Mobility of its preliminary view that the company's seeking and enforcing of an injunction against Apple in Germany on the basis of its mobile phone standard-essential patents ("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust rules. While recourse to injunctions is a possible remedy for patent infringements, such conduct may be abusive where SEPs are concerned and the potential licensee is willing to enter into a licence on Fair, Reasonable and Non-Discriminatory (so-called "FRAND") terms. In such a situation, the Commission considers at this stage that dominant SEP holders should not have recourse to injunctions, which generally involve a prohibition to sell the product infringing the patent, in order to distort licensing negotiations and impose unjustified licensing terms on patent licensees. Such misuse of SEPs could ultimately harm consumers. The sending of a Statement of Objections does not prejudge the final outcome of the investigation.


Standards bodies generally require members to commit to license on FRAND terms the patents that they have declared essential for a standard. This commitment is designed to ensure effective access to a standard for all market players and to prevent "hold-up" by a single SEP holder. Indeed, access to those patents which are standard-essential is a precondition for any company to sell interoperable products in the market. Such access allows consumers to have a wider choice of interoperable products while ensuring that SEP holders are adequately remunerated for their intellectual property.
The Motorola Mobility SEPs in question relate to the European Telecommunications Standardisation Institute's (ETSI) GPRS standard, part of the GSM standard, which is a key industry standard for mobile and wireless communications. When this standard was adopted in Europe, Motorola Mobility gave a commitment that it would license the patents which it had declared essential to the standard on FRAND terms. Nevertheless, Motorola Mobility sought an injunction against Apple in Germany on the basis of a GPRS SEP and, after the injunction was granted, went on to enforce it, even when Apple had declared that it would be willing to be bound by a determination of the FRAND royalties by the German court.

Today's Statement of Objections sets out the Commission's preliminary view that under the specific circumstances of this case - a previous commitment to license SEPs on FRAND terms and the agreement of Apple to accept a binding determination of the terms of a FRAND licence for SEPs by a third party - recourse to injunctions harms competition. The Commission is concerned that the threat of injunctions can distort licensing negotiations and lead to licensing terms that the licensee of the SEP would not have accepted absent this threat. This would lead to less consumer choice" (see the full press release).

Commission objects Austrian regulator's wholesale terminating segments leased lines market review

The European Commission opened phase II regarding RTR's wholesale terminating segments leased lines market review. The Commission object's the regulator's product market definition and SMP assessment (see the press release and the decision for more details).

Wednesday, 1 May 2013

OFCOM opens investigations against BT for alleged margin squeeze in superfast broadband

"Ofcom has received a complaint from TTG alleging that BT has been abusing a dominant position in breach of the Chapter II prohibition in the Act and Article 102 TFEU in relation to the supply of superfast broadband (‘SFBB’). Specifically, TTG alleges that BT has failed to maintain a sufficient margin between its upstream costs and downstream prices, thereby operating an abusive margin squeeze.

As set out in section 25 of the Act, Ofcom may conduct an investigation where there are reasonable grounds for suspecting that the Chapter II prohibition and/or the prohibition in Article 102 TFEU has been infringed. In addition to the Chapter II prohibition in the Act, Ofcom has the power to apply Article 102 TFEU in full.

Ofcom has now opened an investigation under section 25 of the Act into the matters raised by TTG’s complaint and will consider whether BT has abused a dominant position under UK and/or EU competition law." (see related page).

FCC adopts cots model regarding Phase II

"In the USF/ICC Transformation Order, the Commission comprehensively reformed and modernized the universal service and intercarrier compensation systems to maintain voice service and extend broadband-capable infrastructure. As part of the reform, the Commission adopted a framework for providing support to areas served by price cap carriers known as Phase II of the Connect America Fund. An estimated eighty-five percent of the approximately 6.3 million locations in the nation that lack access today to terrestrial fixed broadband at or above the Commission’s broadband speed benchmark live in areas served by price cap carriers...Specifically, the Commission will provide support through “a combination of competitive bidding and a new forward-looking model of the cost of constructing modern multi-purpose networks." Using the cost model to “estimate the support necessary to serve areas where costs are above a specified benchmark, but below a second ‘extremely high-cost’ benchmark,” the Commission will offer each price cap local exchange carrier (LEC) “a model-derived support amount [for a period of five years] in exchange for a commitment to serve all locations in its service territory in a state that, based on the model, fall within the high-cost range and are not served by an competing, unsubsidized provider" (see the Order).

Polish watchdog finds ITI Neovision broke the law by unilaterally altering its satellite television programmes offer

"ITI Neovision broke the law by launching „nc+” offer and informing about its terms and conditions – decided the President of UOKiK and consequently ordered to eliminate without delay the results of contested practice towards its subscribers. Its clients may still use the agreements based on current terms. The company is to fulfil the information obligations and is imposed a fine of nearly PLN 11 mln for violating collective consumer interests" (see the press release).

ANCOM publishes framework decision regarding access of providers in private land

"...the National Authority for Management and Regulation in Communications (ANCOM) has published on its website the Framework-Agreement for the access on the private property for the purpose of the installation, maintenance, replacement or relocation of public electronic communications networks or of the associated supporting infrastructure elements, according to its attributions pursuant to Law no.154/2012 regarding the regime of the electronic communications networks infrastructure." (see the press release).

New Dutch super-authority issues Market Outlook, draft Strategy Plan and Key 2013 Priorities

ACM issued its Market Outlook, draft Strategy Plan and Key 2013 Priorities

ARCEP seeks Commision's approval on proposed prolongation of 2010 leased lines market analysis

The French NRA requested the Commission's approval to extend its 2010 leased lines (market 6) market analysi till 1 July 2014 (see press release and draft decision, in french).

PTS issues follow up on the goals and action areas of the Government’s broadband strategy

The Swedish NRA issued a follow up Report on the goals and action areas of the Government’s broadband strategy from 2009 (see press release).

EETT consults on OTE's provision of the VPU product

The Greek NRA launched its consultation as regards the provision of the incumbent's Virtual Partial Unbundling product (see press release and document, in greek).

EETT consults on old markets 3 and 5 draft market analysis

The Greek NRA launched its consultation concerning its draft market analysis of the market of fixed publicly available local and/or national telephone services prodided to residential and non-residential customers (see press release and document, in greek).

Maltese NRA consults on review of must-carry obligations

"On the 2nd of December, 2011, the MCA issued guidelines on how it would determine must-carry obligations.  On the basis of those guidelines, in February 2012 the MCA designated Melita Cable as having must-carry obligations on both its cable analogue and digital platforms.
The existing MCA determination with respect to must-carry was carried out on the premise that the number of General Interest (GI) channels was established at six.  The addition of a seventh channel towards the end of 2012 represents a significant development in the market and therefore the MCA sees the need to review its guidelines in light of the possible impact that such a development may have.
Meanwhile, another significant development has been taking place in the Cable TV retail market, having to do with the ongoing migration of analogue cable TV subscribers to other platforms, mainly to Digital Cable TV.  This migration gathered momentum throughout 2012, with the result that the number of analogue cable subscribers has now dwindled somewhat.
As a result of these developments, the MCA is consulting publicly again, in order to review the current must-carry obligations and propose changes where necessary.
Interested parties are invited to submit their feedback on this consultation by no later than 24th May 2013." (see the full press release and document).

Court issues 2012 Annual Report

The CJEU has made public its 2012 Annual Report.

Commission's Art. 7 Comments to the Austrian NRA on the latter's draft fixed call origination market analysis

The European Commission made the following comments, in its decision addressed  to TKK on the latter's draft fixed call origination market analysis:

"Change of pricing methodology and resulting significant increase of wholesale call origination rates
The Commission notes that TKK intends to change its wholesale price setting methodology for call origination services, which will in consequence significantly increase the call origination charges. TKK motivates its proposal with changed competition conditions at the retail level (strong pressure from mobile operators) and its intention to incentivize competitors to migrate towards future-proof technology based on VoB. 
The Commission considers that the competitive pressure from neighbouring mobile markets might not be sufficient to justify the change of price setting methodology and such significant increase of wholesale call origination charges. To the contrary, the competitive pressure from mobile markets would suggest that A1 TA could decrease its retail tariffs, and consequently the wholesale charges to avoid a margin squeeze. 
Furthermore, the Commission notes TKK's intention to ensure the relative attractiveness of wholesale offers based VoB. While indeed such offers could positively impact the development of competition not only on the retail calls market(s) but also on the retail access market(s), the Commission considers that in the short to medium term such offers may not be considered substitutes of wholesale call origination services in the specific Austrian context. The Commission notes that despite the existence of regulated wholesale VoB offers on the Austrian market for a significant period of time, there has been virtually no take up of the wholesale services, and only few retail customers are provided with services based on VoB. The Commission points out that the reason for the low take up of VoB offers may not be the relative attractiveness of the CS/CPS model, but possible deficiencies (concerning both pricing and technical issues) of the wholesale VoB offer.
In that regard the Commission asks TKK to analyse further, prior to adopting its final measure, the ability of VoB services to substitute wholesale call origination over the relevant timeframe of the review. Should TKK come to the conclusion that the proposed increase of the wholesale call origination tariffs will most likely strengthen the ability of A1 TA to exclude CS/CPS competitors, without bringing about the expected migration towards VoB, the Commission requests TKK to reconsider in its final measure the need to modify the price setting methodology.
In any event, TKK should closely monitor the market and ensure that there is sufficient margin between the increased wholesale charges and prevailing retail tariffs."

Commission's Art. 7 Comments to the Swedish NRA on the latter's draft broadcasting transmission services review

The European Commission made the following comments, in its decision addressed to PTS on the latter's draft reviews of wholesale market for free TV over the terrestrial platform and that for national analogue broadcasting radio:

"Need to monitor market developments
The market for broadcasting transmission services is no longer listed in the Recommendation on relevant markets due to evidence of greater platform competition in the majority of Member States and fewer capacity constraints which can be attributed to the transition from analogue to digital transmission platforms. These changes have led to a situation where despite the possible existence of market entry barriers, the market dynamics are such that the second criterion of the three criteria test is not satisfied. 
The Commission however recognises the specificities of the Swedish market in which the described market dynamics have not yet materialised. More specifically, the current broadcasting licences of public broadcasters SVT and UR as well as the fact that digital radio broadcasting is still underdeveloped, make it impossible for them to use any other broadcasting platform than the terrestrial one or to switch to another business model in order to ensure nationwide coverage of services. Nevertheless, the Commission invites PTS to closely monitor market developments, particularly with regard to the below described trends.
The Commission notes that a series of trends in Sweden might lead in the future to adjustments to the market definition. In particular, the Commission notes that since 2009 the number of TV subscriptions via fibre and fibre LAN has increased by 60%. The majority of those new subscriptions are assignable to apartment blocks but about 11% of them belong to single family houses, which according to PTS' previous analysis were the main retail customers of free terrestrial TV. In that context, TV services are increasingly being offered as a part of a bundle with broadband services, making the monthly amount paid for the TV service alone less evident for the consumer. These developments might put into question the current (narrow) retail market definition, and the second criterion of the three criteria test (absence of tendency towards effective competition). The Commission therefore invites PTS to closely monitor these  developments, and, if needed, adjust the current retail market definition which distinguishes between pay and free TV.
National analogue broadcasting radio
The Commission takes note of the fact that the transition from analogue to digital radio has not yet occurred in Sweden, although a legislative act in this regard is expected soon. The act would, at least according to the current proposal, establish the licencing requirements for digital radio transmission as of 1 January 2014 and possibly also set a date for the analogue radio switch off. In light of the fact that this proposal could have a substantial impact on the market, the Commission invites PTS to carry out a new market analysis or update the current one as soon as possible after the expected legislative act comes into force."

Commission's staff working document “Report on the implementation of the e-commerce action plan” has been released

"The Commission published a report on progress made in the implementation of the e-commerce action plan" (see related page).

Art. 29 WP issues Opinion on DPIA Template for smart grid and smart metering systems

The Art. 29 Working Party issued its opinion "on the Data Protection Impact Assessment Template for Smart Grid and Smart Metering Systems (‘DPIA Template’) prepared by Expert Group 2 of the Commission’s Smart Grid Task Force" (see the press release).

Art. 29 WP adopts explanatory document on procesor binding corporate rules

"The European data protection authorities, assembled in the Article 29 Working Party (WP29), adopted an explanatory document on Processor BCR in order to further explain the principles and elements to be found in Processor BCR set out in the Working Document 02/2012 (WP195) adopted on 6 June 2012" (see the press release and Document).

Commission's Cloud Expert Group releases study in future cloud computing

The Commission's Cloud Expert Group released its research in the future cloud computing.

AG delivers Opinion in UPC Nederland case

AG Pedro Cruz Villalón, delivered his Opinion (in french and greek), in case C-518/11, according to which he proposes that UPC's activities in the cable sector, to the extent that conveyance of signal is involved, do fall into the scope of the Electronic Communications Regulatory Framework. The AG, is of the opinion also, that the Gemeente Hilversum (the local municipality that sold its cable infrastrucure to UPC, incorporating in the sale contact a price control term) even if it qualified, according to the Framework's Direcitve criteria, for an NRA, the procedure that the said Directive prescribes for imposing a price control remedy was not followed. Thus, the price control conctractual term breaches the Regulatory Framework. The AG then continues to state that even though he views a priori that the price control contractual term does not qualify for a measure pursuing a general interest objective under Art. 1 para 3 of the Framework Direcive, which provides for deviation from the Framework, he proposes that the Court should refer the case to the National Court to examine whether the said contractual term qualifies for a measure pursuing a general interest objective or if Art. 106(2) TFEU may be applied.

Friday, 26 April 2013

AGCM initiates proceedings against telecom providers on consumer protection issues

The Italian watchdog has decided to start three separate proceedings against Tim, Vodafone and Wind, to see if the advertising campaigns that offer Internet 'unlimited' offers comply with the provisions of the Consumer Code (see the press release, in italian).

Commission sends SO in smart card chips cartel

"The European Commission has informed a number of suppliers of smart card chips of its preliminary view that they may have participated in a cartel, in breach of EU antitrust rules. The sending of a statement of objections does not prejudge the outcome of the investigation.

Almost everybody uses smart card chips, be it in mobile phone SIM cards, bank cards, passports, identity cards, Pay TVs or in numerous other applications.

The Commission has concerns that certain chips suppliers may have agreed or coordinated their behaviour in the European Economic Area (EEA) in order to keep prices up. This would breach Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the Agreement on the EEA, which prohibit cartels and restrictive business practices.

The Commission initially agreed to explore the possibility of a settlement with the companies involved but has now discontinued the talks due to lack of progress. The normal antitrust procedure will now run its course." (see the Commission's full press release).

Commission seeks feedback on commitments offered by Google

"The European Commission invites comments from interested parties on commitments offered by Google in relation to online search and search advertising. The Commission has concerns that Google may be abusing its dominant position in the markets for web search, online search advertising and online search advertising intermediation in the European Economic Area (EEA). Google has made proposals to try to address the Commission's four competition concerns. Interested parties can now submit their comments within one month. The Commission will take them into account in its analysis of Google's commitment proposals. If the Commission concludes that they address its four competition concerns, it may decide to make them legally binding on Google" (see the press release, FAQ).

Commission issues SAM's evaluation paper

The European Commission issued a Paper on the evaluation of the State Aid Modernisation initiative.

EETT makes public findings on OTE's universal service net cost control

The Greek NRA made public its findings on OTE's universal service net cost control, stating that it is not possible to come to concrete result and calling in the end the incumbent to provide more data (see document, in greek).

French regulator recommends standardised line identification solution for FTTH networks

"For FTTH network rollouts to become increasingly industrialised, one key stage will involve assigning each line an identifier that can be used whenever work is performed on the line, and especially when service orders are placed, to facilitate communications between consumers and their service provider, but also between service providers and building operators. This identifier, which will be the same nationwide, needs to remain consistent over time and be accessible to both customers and technicians performing service calls.

ARCEP has published a recommendation for such a system to be introduced, in a bid to encourage all operators to adopt this type of practice. From a concrete standpoint, the recommendation is for a unique identifier with a standardised 10-character format to be assigned to each line by a line ID administrator - which in most cases will be the building operator that installed the network. This identifier will be displayed on the optical network unit, which will make it easy for the the customer, and technicians when necessary, to locate. Another point to examine is whether to include this identifier on invoices and on customer account pages on operators' websites.

For new buildings where optical fibre systems are installed directly by the original contractor, the building operator will only be designated once construction is complete. ARCEP continues to work with the Objectif Fibre group - which published a handbook on FTTH installations on greenfield sites - on adapting the management and assignment of unique identifiers under those circumstances." (see ARCEP's full press release).

Clarification that small blogs do not fall into UK's proposed press self-regulator scheme

"The government’s Royal Charter proposes a new system of independent, self-regulation of the press which is one of incentivisation rather than compulsion. Those proposals are now being taken forward in the Crime and Courts Bill.

Following the initial debate in Parliament, we have refined the clauses to make it absolutely clear that small blogs are outside of the scheme.

The amendments, which have cross-party agreement, make clear that small blogs will not be classed as ‘relevant publishers.’" (see DCMS' press release).

OFCOM consults on 70MHz future use

"1.7 In this document we provide an overview of the work that Ofcom is planning to undertake regarding the future of the 700 MHz band. We are also seeking input from stakeholders on two specific areas:
  • The factors that are relevant for us to consider when assessing the costs and benefits associated with a potential future change of use of the 700 MHz band. We are also seeking to explore whether market mechanisms, such as an incentive auction, could have a role to play in determining the timing of a future release of the 700 MHz band.
  • The measures that we can and should take, ahead of any future change of use of the 700 MHz band, to reduce the disruption and costs which could result from a change of use of the band.
1.8 Section 2 outlines the areas of work we are planning to take forward to implement our UHF Strategy and the next steps. Section 3 considers our international engagement in relation to a potential future release of the 700 MHz band. The specific questions we are seeking input on in this call for inputs are set out in more detail in Section 4 (on understanding the costs and benefits of a potential future release of the 700 MHz band) and Section 5 (on reducing impact of a potential change of use of the 700 MHz band). It should be noted that, at this stage, we are not specifically asking for input on the detailed mobile band planning work through this call for input" (see OFCOM's full summary and related page).

OFCOM calls inductry to take part in "white spaces" pilot

"Use of these white spaces will allow devices to transmit and receive wireless signals for applications such as broadband access for rural communities, Wi-Fi-like services or new ‘machine-to-machine’ networks.

Ofcom is inviting industry to take part in the pilot, which is intended to take place in the autumn. The locations for the trial will be chosen once trial participants have been identified.

Following a successful completion of the pilot, Ofcom anticipates that the technology could be fully rolled out during 2014, enabling the use of white space devices across the country." (see OFCOM's related page).

Romanian NRA consults on draft Minimum Security Requirements on Incident Reporting Procedure

"The National Authority for Management and Regulation in Communications (ANCOM) launches for public consultation a draft decision on establishing the minimum security requirements to be taken by the providers of public networks or of publicly available electronic communications services. The decision also proposes a procedure by which the providers will report ANCOM the incidents with significant impact on the provision of electronic communications networks and services." (see the NRA's full press release).

Commission adopts Green Paper and consults on converging audiovisual world

"A Green Paper adopted by the Commission today invites stakeholders and the wider public to share their views between now and the end of August 2013, on issues such as:
  • The rules of the game. Fostering the right conditions for dynamic EU businesses to deal with international (especially US) competition; especially given that competing players may be subject to different rules;
  • Protecting European values (including media freedom) and user interests (e.g. protecting children, accessibility for users with disabilities). Do people expect higher protection for TV programmes than for internet content; and where is the line to be drawn?
  • Single market and standards. Seemingly, some devices do not work the same way across Member States. How can we promote the right technological environment?
  • Financing. How will convergence and changing consumer behaviour influence how films, TV shows and other content is financed? How are different actors in the new value-chain contributing?
  • Openness and media pluralism. Should pre-defined filtering mechanisms, for example in search engines, be subject to public intervention? Are the existing practices relating to premium content – for example, major sport events and successful recently released films - at wholesale level affecting market access and sustainable business operations? Are platforms sufficiently open?
This new reality is already being discussed in several EU countries and in the European Parliament. Views differ on how to respond. Some parties call for immediate changes to rules and regulations; some remain satisfied with the status quo for the time being, while others point to self and co-regulation. The Green Paper does not pre-suppose any action, but in following up, the Commission might explore regulatory and policy responses, including self-regulation." (see the Commission's full press release, FAQ and a page with all the paper's versions).

Commission's Art. 7 Comments to the Dutch NRA on the latter's implementation of the DCF-based FttH ODF access tariff regulation

The European Commission made the following comments, in its decision addressed to OPTA on the latter's draft measure implementating of the DCF-based FttH ODF access tariff regulation:

"Price control
The Commission reiterates in the present FttH ODF access price control implementation case the principles of its comment in OPTA's FttO ODF access case NL/2012/1407.
Given the importance of regulating key wholesale access products in the transition period to NGA networks in an effective and consistent manner across the EU, the Commission recalls that it is currently finalizing a Recommendation that sets out the regulatory principles to enhance the broadband investment environment. This Recommendation will provide guidance on the implementation of the non-discrimination obligation and of costing methodologies for key wholesale access prices. The Commission therefore requests ACM to review its costing methodology in line with the forthcoming Recommendation once adopted.
The Commission also emphasizes that in principle an ex ante price control obligation for fibre infrastructure would not be necessary if there were sufficient competition safeguards in place. In this regard, ACM should consider the proportionality of imposing an Equivalence of Input (EoI) obligation, which generally requires the SMP operator to provide services and information to their access seekers on the same terms and conditions, the same time scales using the same systems and processes with the same degree of reliability and performance, as it does to KPN. As EoI can only be fully implemented over a longer time period, this requirement could consist in immediate terms in a firm obligation on and commitment by the SMP operator to undertake certain key initiatives over a set time period. Such a non-discrimination obligation should also include the requirement to ensure technical replicability, foresee milestones setting out the time table for the implementation of relevant key performance indicators as well as service level agreements necessary for the provision of the key regulated wholesale access services, and provide an effective enforcement and monitoring mechanism. ACM should also foresee an economic replicability test that ensures that as a result of the pricing flexibility for NGA access prices, the margin between the relevant retail price and the relevant NGA-basedregulated wholesale access inputs covers the incremental downstream costs and a reasonable percentage of common costs.
Against this background, the Commission asks ACM to engage as soon as possible in dialogue with stakeholders to assess the feasibility of implementing EoI in the Netherlands. It could lift the cost orientation requirement for the SMP operator’s fibre lines as soon as the necessary safeguards are effective in the Netherlands and ACM would establish that the SMP operator’s pricing behaviour is properly constrained by either cost-oriented copper prices or by significant competitive constraints, indicated in particular by the presence of well-developed alternative infrastructures."

Commission sends Netherlands Reasoned Opinion on new super-reguator's independence regarding broadcasting issues

"The European Commission is taking action to ensure the Dutch telecoms regulator, ACM, retains full independence in the application of EU telecoms rules to television broadcasting transmission. The 2009 EU Regulatory Framework for telecoms requires that national regulators have full independence in how they apply market regulation. The Commission believes that current Dutch regulation limits this regulatory discretion by attempting to directly regulate the market in two ways. In the first case, broadcasters subject to "must-carry obligations" are forced to offer for resale their television programmes, as well as the transmission service that carries them, at wholesale level at "cost-oriented" prices (to prevent undue profits). The second provision obliges the ACM to force companies found to have significant market power to resell their programmes to competitors at cost-oriented prices.
The Commission is mainly concerned about how these regulatory provisions were imposed. It should be up to independent regulators to decide on whether such measures should be imposed, rather than the Dutch Government..." (see the relevant page).

Friday, 19 April 2013

FCC consults on NPRM enabling VoIP providers' direct access to numbers

The US Agency launched its consultation on its NPRM enabling VoIP providers' direct access to numbers (see the press release as well).

Commission opens in-depth investigation into proposed UK video games tax relief

"The European Commission has opened an in-depth investigation into the proposed UK video games tax relief. The objective of the measure is to provide an incentive to video games developers to produce games meeting certain cultural criteria. However, the Commission considers that there is no obvious market failure in this dynamic and growing sector and that such games are produced even without state aid. Consequently, at this stage, the Commission doubts that the aid is necessary. The opening of an in-depth investigation does not prejudge its outcome. It gives the UK and other interested parties the opportunity to comment.


The UK intends to introduce a 25% tax relief on a maximum of 80% of the production budget of a qualifying video game for expenditure on goods and services used or consumed in the UK. However, based on the information available at this stage, the Commission doubts whether:
  • aid is necessary to stimulate the production of such video games;
  • limiting expenditure for the tax relief to goods or services 'used or consumed' in the UK would not be discriminatory;
  • offering this type of aid would not fuel a subsidy race between Member States; and
  • the proposed cultural test ensures that the aid supports only games with cultural content without leading to undue distortions of competition." (see the Commission's full press release).

Commission tests commitments proposed by Penguin

"The European Commission is inviting comments from interested parties on commitments offered by Penguin (Pearson Group, United Kingdom). The proposed commitments aim to alleviate concerns that Penguin may have engaged in an anti-competitive concerted practice affecting the sale of e-books in the European Economic Area (EEA). They are substantially the same as those proposed by Simon & Schuster, Harper Collins, Hachette, Holtzbrinck and made legally binding by the Commission in December 2012 (see IP/12/1367). If the market test confirms that Penguin's commitments are suitable to address the Commission's competition concerns, the Commission may make them legally binding on Penguin.

The Commission considers at this stage that Penguin, together with the aforementioned four publishers and Apple may have breached EU antitrust rules that prohibit cartels and restrictive practices by jointly switching the sale of e-books from a wholesale model to agency contracts containing the same key terms (in particular an unusual so-called "Most Favoured Nation" – MFN – clause for retail prices). The agency model allows more control by publishers over retail prices. The Commission has concerns that this switch may have been the result of collusion between competing publishers, with the help of Apple, and may have aimed at raising retail prices of e-books in the EEA or preventing the emergence of lower prices.

In the proposed commitments, Penguin offers to terminate existing agency agreements and refrain from adopting price MFN clauses for five years. In case Penguin would enter into new agency agreements, retailers would be free to set the retail price of e-books during a two-year period, provided the aggregate value of price discounts granted by retailers does not exceed the total annual amount of the commissions that the retailer receives from the publisher." (see Commission's press release).

AGCOM approves TI's NGAN 2012 Reference Offer

The Italian NRA approved TI's NGAN 2012 Reference Offer (see related page, in italian).

Commission adopts report on functioning of online anti-counterfeiting MoU

"The European Commission has ... adopted a Report on the functioning of the Memorandum of Understanding (MoU) on the sale of counterfeit goods via the Internet" (see press release and related page).

Commission's Art. 7 Comments to the Spanish NRA on the latter's review of the broadcasting transmission market

The European Commission made the following comments, in its decision, addressed to CMT on the latter's review of the wholesale broadcasting transmission services market:

"Effectiveness of the access remedy
The Commission noticed that despite the regulatory obligations imposed in the previous rounds of market analyses, there was little development towards effective competition in the relevant market. Concerning the access obligation, the Commission notes that CMT proposes again to impose a general co-location obligation on Abertis as a main obligation and an interconnection obligation as an alternative remedy only in cases where due to technical and/or economical reasons co-location is not feasible. As in the previous market review, the Commission notes that there appears to be no real demand for co-location in Spain. The Commission therefore requests CMT to consider the imposition of a general interconnection obligation in its final measure. Alternatively CMT should monitor market entry via co-location very closely and later impose a general interconnection obligation if needed to allow market entry. The Commission notes that such a general interconnection obligation could be limited in time in order to maintain new entrants' incentives to roll-out their own infrastructure over time."

Commission's Art. 7 Comments to the Spanish NRA on the latter's modified remedies in markets 1 and 5

The European Commission made the following comments, in its decision addressed to CMT on the latter's modified methodology of ex ante assesment of Telefonica's retail products:

"The need for conducting a new market review for market 5

Pursuant to Article 8(4) of the Access Directive, obligations shall be based on the nature of the problem identified, be proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. According to the Framework Directive, NRAs shall decide on whether to maintain, amend or withdraw obligations on undertakings on the basis of a market analysis.
Pursuant to paragraph 6 of Article 16 of the Framework Directive, regulators should carry out their market reviews with in three years from the adoption of the previous measure. In that respect, the Commission notes that CMT carried out the last market review for market 5 in 2008. In the notified draft measure CMT specifically refers to, inter alia, the changing conditions in the retail broadband market and development of alternative operator's market shares as reasons for reviewing the methodology for ex ante assessment of retail offers. In the view of the Commission, these developments in the retail market may be signs of corresponding developments in the wholesale market. In the light of this, and in particular the on-going development of NGA, and the need for regulation to be technology-neutral in line with Article 8 of the Framework Directive, the Commission urges CMT to conclude a market review for market 5 without further delay.
The methodology for ex ante assessment of commercial offers
The Commission welcomes the fact that CMT in its revised methodology for ex ante assessment of commercial offers reduces the number of offers that will be subject to the individual test and focuses the individual test on new and modified permanent offers. Yet, the Commission urges CMT to reassess the proportionality of the aggregate test which in addition to testing new and modified permanent offers will monitor all temporary offers and promotional activities by the SMP operator after their launch. Stability and predictability of legacy wholesale access prices is key to provide a clear framework for investment and to drive competition. A recurrent test as the aggregate test, which includes all relevant offers by the SMP operator, is performed every six months and the failure of which leads to the temporary adjustment of wholesale tariffs by CMT, risks generating legal and economic uncertainty which may negatively affect investments and innovation.
Further, the Commission highlights that the Commission is working towards the adoption of a Recommendation on the consistent application of non-discrimination obligations and cost methodologies to promote competition and enhance the broadband investment environment, which will give some guidance on the design of an ex ante economic replicability test for NGA-based services. This test should be used in case pricing flexibility is granted to the SMP operator for NGA wholesale inputs in the presence of other competitive safeguards. In particular, the Commission points out that the recommended test could be carried out at any time but no later than three months after the launch of the relevant retail product and the NRA should conclude it within the shortest possible time and in any case within four months. Accordingly, the Commission urges CMT to revisit the proposed methodology for ex ante tests of commercial offers along the lines of the forthcoming Recommendation once adopted if CMT were to extend the assessment to include NGA-based services."

ENISA mandate extended

"The European Commission welcomes the vote of the European Parliament in a plenary session today to extend the mandate of the European Network and Information Security Agency (ENISA).

Today's vote (626 for, 45 against) is the conclusion of lengthy political discussions between Council and the European Parliament. A political agreement was reached at the end of January 2013, and EU Ministers formally endorsed the Regulation on 8 February. The new Regulation (see MEMO/10/459) grants ENISA a new 7 year mandate. This is particularly significant given the important role the agency will play in the implementation of the EU Cybersecurity Strategy adopted by the European Commission in January (see IP/13/94).

ENISA will retain its seat in Heraklion, Crete, but will also have a branch office in Athens which brings it closer to its stakeholders and makes the agency more efficient." (see the Commission's complete and ENISA's press release).

Monday, 15 April 2013

OFT investigates free children's web and app-based games

"The OFT has launched an investigation into whether children are being unfairly pressured or encouraged to pay for additional content in 'free' web and app-based games, including upgraded membership or virtual currency such as coins, gems or fruit. Typically, players can access only portions of these games for free, with new levels or features, such as faster game play, costing money." (see the press release).

Commission clears Virgin Media' s acquisition by Liberty Global

"The European Commission has cleared under the EU Merger Regulation the proposed acquisition of UK cable operator Virgin Media Inc., registered in the US, by the US-based company Liberty Global, Inc. The transaction, with a value of €17.2 billion, would bring together the second largest Pay TV operator in the UK (Virgin Media) and the largest cable operator in Europe (Liberty Global). The Commission's investigation confirmed that the transaction would not raise competition concerns, in particular because the parties operate cable networks in different Member States and because of the merged entity's limited market position in the wholesale of TV channels in the UK and Ireland.

Both Liberty Global and Virgin Media acquire audio visual content, such as individual TV programmes and entire TV channels, which they then offer to their subscribers. The Commission examined, in particular, the market for the acquisition of TV content in the UK, Ireland and the European Economic Area (EEA) as a whole. The Commission concluded that the proposed acquisition would not restrict competition in these markets because TV content is licensed mainly on a national basis or for linguistically homogeneous areas and because the merged entity would still face sufficient competitive constraint from other players, such as TV content providers and competing Pay TV retailers.

Moreover, the Commission investigated the vertical link between Liberty Global's activities in the wholesale supply of Pay TV channels (e.g. Extreme Sports Channel, CBS Reality, Horror Channel, etc.) and Virgin Media's activities in the acquisition of these channels and the retail of Pay TV services to customers in the UK. The Commission concluded that the merged entity is unlikely to shut out competing Pay TV retailers by withholding its TV channels from them, given its very limited presence in the wholesale supply of TV channels and the incentive to license its TV channels as broadly as possible. Similarly, it is unlikely that the merged entity would shut out competing TV channel broadcasters from access to the retail Pay TV market, given the number of alternative distribution platforms to Virgin Media’s cable network (e.g. BSkyB's satellite platform) and the importance of offering a large variety of TV channels in order to attract Pay TV subscribers.

The Commission therefore concluded that the transaction would not raise competition concerns. The transaction was notified to the Commission on 6 March 2013." (see press release).

OFCOM consults on non-geographic number ranges billing policy and dispute resolution guidance

OFCOM launched its consultation as regards its 080 and 116 billing policy (here) and dispute resolution guidance (see here and press release).

AGCOM issues dtv licenses auction rules

The Italian NRA issued its dtv licenses spectrum auction auction rules (see related page, in italian).

Conseil d' Etat rejects action for annulment of ARCEP's denial to open a case against Free for non compliance with its 3g license coverage obligation

French Supreme Administrative Court rejected an action for annulment of ARCEP's denial to open a case against Free for non compliance of the latter with its 3g license coverage obligation (see decision, in french).

ADAE consults on draft electronic communications and services safety and integrity Regulation

The Greek Communications Security and Privacy Authority launched its consultation on its draft electronic communications and services safety and integrity Regulation (in greek). It should be noted that about year ago a Ministerial Decision was issued regulating relative issues (see older post here, and the decision, in greek).

ENISA says ISPs fail to apply filters against big cyber attacks

"In its analysis of a recent massive cyber-attack, EU cyber-security agency ENISA today points out that Internet Service Providers (ISPs) have failed to apply well-known security measures which have been available for over a decade." (see press release and document).

Tuesday, 9 April 2013

Belgian NRA issues draft decision on FttH to be included in broadband markets analysis

BIPT issued its draft decision on FttH to be included in its July 2011 broadband markets analysis (see decision, in french).

Commission objects BNetzA's FTRs - UPDATE

"The European Commission has blocked a proposal by the German Telecoms Regulator (BNetzA) to set fixed termination rates three times (300%) higher than the average of countries which follow the recommended approach set out in EU telecoms rules. Termination rates are the rates telecoms networks charge each other to deliver calls between networks, and each operator has market power over access to customers on its own network. These costs are ultimately passed on to consumers and businesses.

Under BNetzA's proposal, fixed termination rates would range from €0.0036/minute (peak) to €0.0025/minute (off-peak). Operators in countries which follow the EC's recommended approach ... pay on average €0.001/minute.


Following the "serious doubts" letter sent today by the Commission, BNetzA now has three months to work with the Commission and the body of European telecoms regulators (BEREC) on a solution to this case. In the meantime implementation of the proposal is suspended." (see the press release).

UPDATE (15/04/2013): Commission's decision is out.

Commission gives green light to the creation of Penguin Random House

"The European Commission has cleared under the EU Merger Regulation the proposed creation of Penguin Random House, combining parts of the publishing businesses of the media company Bertelsmann of Germany and the publishing company Pearson of the UK. The Commission found that the transaction would not raise competition concerns, in particular because the merged entity will continue to face several strong competitors" (see press release).

Commission launches formal investigation into MasterCard inter-bank fees

"The Commission has opened formal proceedings to investigate whether MasterCard may be hindering competition in the European Economic Area (EEA) with regard to payment cards, in breach of EU antitrust rules. The Commission has concerns that some of MasterCard's inter-bank fees and related practices may be anti-competitive. An opening of proceedings does not prejudge the outcome of the investigation.

... In 2007, the Commission already prohibited some of MasterCard's inter-bank fees and the Commission is currently investigating Visa. 

The Commission has now opened an in-depth investigation into:
(i) inter-bank fees in relation to payments made by cardholders from non EEA countries – as opposed to fees for cross border transactions within the EEA that were already prohibited in 2007 (see IP/07/1959 and MEMO/07/590). Such fees apply for example when a US tourist uses his MasterCard credit card to make a purchase at a merchant in the EEA;
(ii) all rules on 'cross-border acquiring' in the MasterCard system that limit the possibility for a merchant to benefit from better conditions offered by banks established elsewhere in the internal market and
(iii) related business rules or practices of MasterCard which amplify the Commission's competition concerns (like the "honour all cards rule" which obliges a merchant to accept all types of MasterCard cards)" (see press release).