Romanian regulator consults on the release of the 830-862 MHz, 1747.5-1785 MHz, 1842.5-1880 MHz and 2500-2690 MHz frequency bands

ANCOM, launched its consultation on the release of the 830-862 MHz, 1747.5-1785 MHz, 1842.5-1880 MHz and 2500-2690 MHz frequency bands (see ANCOM's press release).

Swedish NRA consults on planned radio use in the 2.3 GHz band

PTS launched its consultation as regards the planned use in the 2,3 GHz band, to receive views from the market in respect of problems relating to coexistence, technology and service neutrality, assignment units required, time to implement any selection procedure, territorial limits, spectrum ceiling (see the Authority's relative page).

Commission closes infringement case after UK correctly implements EU rules on privacy in electronic communications

"The European Commission has closed an infringement case against the UK in recognition that UK national legislation has now been changed to properly implement EU rules on ePrivacy and data protection on the confidentiality of communications such as email or Internet browsing. The Commission believes UK law and institutions are now well-equipped to enforce the privacy rights of UK users" (see the Commission's full press release).

ACTA formally signed

ACTA was signed by the EU and 22 Member States (Member States that did not sign: Cyprus, Esthonia, Germany, Netherlands and Slovakia) in a signing ceremony held at the Japanese Ministry of Foreign Affairs (see statement). The European Parliament will now continue scutinizing the agreement.

Commission Proposals on the data protection reform

The European Commission made public its proposals on the reform of data protection (see the relevant page).

Commission launches Consultation on the revision of the European Union rules on regional state aid

The European Commission has launched its Consultation on the revision of the European Union rules on regional state aid (see the relevant page).

Ofcom issued a final determination on the dispute between Talk Talk and BT on MPF rental charges

"On 23 January 2012, Ofcom issued a final determination under sections 188 and 190 of the Act resolving this dispute.

Ofcom was asked to resolve this dispute under section 185(1A) of the Communications Act 2003 (the Act) concerning the charge set by BT for LLU MPF rental" (see OFCOM's relevant page).

Commission launches consultation on spectrum for more efficient energy production and distribution

The European Commission launched a consultation as regards "the use of spectrum for one of the specific Union policies referred to in Article 8 of the Radio Spectrum Policy Programme (RSPP), which states that the Commission, in cooperation with the Member States, shall consider making spectrum available for wireless technologies with a potential for improving energy saving, including smart energy grids and smart metering systems". The Commission will run up unti 18 April 2012 (see the Commission's relevant page).

Cypriot Decree on rights of way published in the National Gazzette

The Cypriot Decree "ΚΠΔ 10/12" on Rights of Way focusing on public streets which repeals the previous respective Decision was published in the National Gazette (see the regulator's relevant page, in greek).

France Telecom's new reference offers including regulated wholesale tariffs for 2012

The French regulator, stated in its press release the following:

"In the first half of 2011, ARCEP carried out a public consultation on annualized investment cost methodologies for France Telecom's copper local loop. It also performed technical work in preparation for its report to the Senate on these costs, and on changes resulting from the switch from copper to fibre.

In the wake of this consultation and this work, ARCEP considered that its method, which is based on economic amortisation of the incumbent carrier's actual costs, does not induce either excessive compensation or provision for replacement of fixed assets, and appears to comply with the ruling from the Court of Justice of the European Union against ARCOR and with European Commission recommendations. ARCEP nevertheless believes it necessary to take into account, first, the increased longevity of the civil engineering, which is an essential infrastructure that can be reused for the deployment of optical fibre networks, and second, on the contrary, the accelerated obsolescence of copper cables which are due to be replaced by fibre optic cables.

In its Decision No.2012-0007 of 17 January 2012, ARCEP amended its Decision No. 05-0834 of 15 December 2005, setting the cost assessment method to be used for the copper pair, by progressively shortening the amortization period of copper cables from 25 to 13 years while at the same time progressively increasing the amortization period of civil engineering assets from 40 to 50 years between now and 2021. This scheduled increase should result in a decrease in France Telecom's full unbundling tariffs after 2012.

Pursuant to the publication of this decision, and in accordance with its regulatory obligations, France Telecom amended the tariffs subject to cost-oriented pricing obligations imposed by market analysis decisions. Of particular note, the price of full unbundling has decreased from €9.00 to €8.80.

France Telecom has proposed bringing these changes quickly into effect, which would have positive repercussions for alternative operators:

- the price decreases will be applied retroactively, as of 1st January 2012;

- the remaining price changes will come into effect on 1st February 2012.

These changes to France Telecom's prices will translate into a decrease of more than €50 million in alternative operators' expenses in 2012 from the incumbent carrier's total income of €2.4 billion."

ARCEP issues licences to the digital dividend spectrum winners (800 MHz)

"Through Decision No. 2011-1510 of 22 December 2011, ARCEP selected the companies Bouygues Telecom, Orange France and SFR as the winning candidates in the spectrum allocation procedure for 800 MHz-band frequencies.

Today (17 january 2012) ARCEP issued each of these companies a licence to use spectrum in the 800 MHz band to establish and operate a publicly available mobile radio network in Metropolitan France" (see the full press release).

Italian DTT frequency beauty contest suspended

The Italian Ministry of Economic Development announced the suspension of the DTT frequency beauty contest (in italian, see also a brief analysis in medialaws.eu).

Greek incumbent declaring intention to "tweak" costs?

OTE's CEO, Mr Tsamaz, has purpotedly stated (see imerisia.gr and adsl.gr, in greek) that the company will transfer some of its employees, that are not involved directly in the process of rendering retail or wholesale services, to other subsidiaries so that OTE's costs are reduced, resulting amongst other, in the respective reflection of that decrease of costs in its cost-oriented price control obligaions imposed by the regulator.

French NCA delivers Recommendations on National FttH plan

The French Competition Authority issued its Recommendations addressed to the Senate (in french), so that distortion of competition is avoided when the projects of the French State's FttH plan are launched.

Polish MTRs draft decisions leading to Art. 7a withdrawn - UKE assumes commitment to review the market

In a common statement, the European Commission, BEREC and the President of UKE, stated the following:

"On 11 January 2012, a tripartite meeting on the regulatory situation in the markets for voice call termination on individual public mobile telephone networks in Poland took place between representatives of the European Commission (EC), the Body of European Regulators for Electronic Communications (BEREC) and UKE at the seat of the Office of Electronic Communications in Warsaw.

The meeting was held, in accordance with Article 7a(2) of the Framework Directive, to identify the most appropriate and effective regulatory measure, in line with the Commission Recommendation of 7 May 2009 on the regulatory treatment of fixed and mobile termination rates in the EU (OJ L 09.124.67), for the problems identified by UKE on the markets concerned.

The meeting directly related to draft regulatory decisions for mobile operators notified by the President of UKE in October/November 2011 (cases: PL/2011/1255-1258, PL/2011/1260, PL/2011/1273) and the serious doubts subsequently raised by the Commission regarding the remedies proposed by the Polish regulator.

The President of UKE, the European Commission and the BEREC successfully defined together the most effective regulatory approach to ensure that the regulatory goal, i.e. implementation of symmetric mobile termination rates for all Polish mobile operators, based on the bottom-up LRIC (long run incremental cost) model, starting from 1 January 2013, is met. This implies that there is no need to intervene in interconnection rates disputes by the regulator on a case by case basis.
The Parties agreed that UKE:

• withdraws those draft decisions which were notified in October/November 2011;

• notifies new draft SMP (significant market power) decisions for mobile operators in the voice call termination market, defining symmetric MTRs (mobile termination
rates) based on the bottom-up LRIC model.

The President of UKE explained that the relevant draft SMP decisions will be presented to the Commission, BEREC and the other national regulatory authorities in mid-2012 and are planned to be finally adopted in the autumn of 2012.

The three institutions agree and firmly reiterate that regulatory obligations, including the level of MTRs, are legally binding for the addressees of SMP decisions and should be executed and implemented immediately after the relevant decisions are issued, without any additional need for the regulator to intervene in bilateral interconnection agreements on the set level of MTRs.

Having regard to the above, the three institutions require the addressees of regulatory decisions issued following market analyses to comply with such decisions immediately and in their entirety".

Malta's regulator issued Number Portability Specification for Premium Rate Numbers

MCA has issued its Number Portability Specification for Premium Rate Numbers.

Italian NRA approves Telecom Italia's prices for its bitstream services

AGCOM has approved (in italian) the prices in TI's Reference Offer for its bitstream services (market 5) which are subject to cost orientation.

IMT-Advanced standards announced for next-generation mobile technology

"Specifications for next-generation mobile technologies – IMT-Advanced – were agreed today (18 January 2012) at the ITU Radiocommunication Assembly currently meeting in Geneva.

Following a detailed evaluation against stringent technical and operational criteria, ITU has determined that "LTE-Advanced" and "WirelessMAN-Advanced" should be accorded the official designation of IMT-Advanced.

IMT-Advanced systems include new capabilities that go beyond IMT-2000, widely deployed since 2000 and referred to as 3G mobile technologies. ITU has now specified the standards for IMT-Advanced, the next-generation global wireless broadband communications that provide access to a wide range of packet-based telecommunication services supported by mobile and fixed networks" (see ITU's full press release).

AG delivers Opinion in DR and TV2 Danmark case

AG Trstenjak, has delivered her Opinion in case C-510/10, and reads as follows:

"98. In the light of the foregoing, I propose that the questions referred should be answered as follows:

1. The expressions ‘by means of their own facilities’ in Article 5(2)(d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and ‘on behalf of [and/or] under the responsibility of the broadcasting organisation’ in recital 41 of the preamble to that directive must be interpreted with reference to European Union law.

2. Recital 41, in the light of which Article 5(2)(d) of the directive is to be interpreted, is to be understood as meaning that the facilities referred to there include those which are employed for the sole purpose of enabling a particular broadcasting organisation subsequently to use the ephemeral recording to make a lawful broadcast, on the assumption that the recording is made under the responsibility of the broadcasting organisation.

3. A specific assessment as to whether a recording made by a third party (‘the producer’) for use in a broadcasting organisation’s transmission was made ‘by means of [the broadcasting organisation’s] own facilities’ and also ‘on behalf of [and/or] under the responsibility of the broadcasting organisation’, with the result that the recording is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29, is to be based on whether the facilities are employed for the sole purpose of enabling the broadcasting organisation subsequently to use the ephemeral recording to make a lawful broadcast, on the assumption that the recording is made under the responsibility of the broadcasting organisation.

(a) The term ‘own facilities’ in Article 5(2)(d) of Directive 2001/29 is to be understood as meaning that a recording which was made by the producer for use in a broadcasting organisation’s transmissions is covered by the exception laid down in Article 5(2)(d) only if the broadcasting organisation is liable towards third parties for the producer’s acts and omissions in relation to the recording in the same way as it would be if the broadcasting organisation had itself committed those acts and omissions.

(b) The condition that the recording must be made ‘on behalf of [and/or] under the responsibility of the broadcasting organisation’ is not, however, always automatically satisfied where the broadcasting organisation has commissioned the producer to make the recording so that the broadcasting organisation can transmit the recording in question itself, on the assumption that the broadcasting organisation concerned has the right to transmit the recording in question.

For the purpose of answering Question 3(b),

(i) it is immaterial whether it is the broadcasting organisation or the Producer which has the final and conclusive artistic/editorial decision on the content of the commissioned programme under the agreement concluded between those parties;

(ii) the question whether the broadcasting organisation is liable towards third parties for the producer’s obligations in relation to the recording in the same way as it would be if the broadcasting organisation itself had committed those acts and omissions is a decisive consideration;

(iii) it is immaterial whether the producer is contractually obliged by the agreement with the broadcasting organisation to deliver the programme in question to the broadcasting organisation for a specified price and has to meet, out of this price, all expenses that may be associated with the recording;

(iv) it is material whether it is the broadcasting organisation or the producer which assumes liability for the recording in question vis-à-vis third parties, although both may be jointly liable.

(c) The condition that the recording must be made ‘on behalf of [and/or] under the responsibility of the broadcasting organisation’ is not automatically satisfied where a broadcasting organisation has commissioned the producer to make the recording so that the broadcasting organisation can transmit the recording in question itself, on the assumption that the broadcasting organisation in question has the right to transmit the recording, where the producer, in the agreement with the broadcasting organisation relating to the recording, has assumed the financial and legal responsibility for (i) meeting all the expenses associated with the recording in return for payment of an amount fixed in advance; (ii) the purchase of rights; and (iii) unforeseen circumstances, including any delay in the recording and breach of contract, but without the broadcasting organisation being liable towards third parties in respect of the producer’s obligations in relation to the recording in the same way as it would be if the broadcasting organisation had itself committed those acts and omissions".

Commission launches accelerated infringement proceedings against Hungary over independence of its data protection authorities amongst other grounds

"The European Commission has today started legal action against Hungary over new legislation that came into force at the beginning of the year under Hungary's new constitution. Following several exchanges with the Hungarian authorities on the drafts of the new legislation – notably letters sent by President José Manuel Barroso, Vice-President Viviane Reding (EU Commissioner for Justice, Fundamental Rights and Citizenship) and Vice-President Olli Rehn (EU Commissioner for Economic and Monetary Affairs and the Euro) – the Commission has now concluded a detailed legal assessment of the new legislation adopted at the beginning of January. For the Commission, the Hungarian legislation conflicts with EU law by putting into question the independence of the country's central bank and data protection authorities and by the measures affecting its judiciary.

The Commission therefore decided today to send three Letters of Formal Notice to Hungary – the first stage in the EU's infringement procedure – and to raise further related issues with the Hungarian authorities to identify whether further action may be warranted under EU law, notably regarding the independence of the judiciary. The Hungarian authorities now have one month to respond to the Commission's concerns.

...

Under new Hungarian legislation, also 274 judges (including judges at the Supreme Court) are being compulsorily retired in contradiction to EU rules. The government also receives powers over the data protection authority that contradict the EU Treaties, which require the independence of national data protection authorities (Articles 16 of the Treaty on the Functioning of the European Union/TFEU, Article 8(3) of the Charter of Fundamental Rights) and the independence of the national central bank (Articles 130 and 127 TFEU, Article 14 of the Statute of the European System of Central Banks and of the European Central Bank). Hungary's central bank is part of the European System of Central Banks (ESCB) and the Hungarian Central Bank Governor has a seat in the General Council of the European Central Bank, which is the ECB's third decision-making body.

...

3) Independence of the data protection supervisory authority

The case on the data protection supervisor relates to Hungary's recent decision to create a new National Agency for Data Protection, replacing the current Data Protection Commissioner's Office as of 1 January 2012. As a result, the six-year term of the Data Protection Commissioner currently in office, who was appointed in 2008, will be prematurely put to an end. There are no interim measures until the term of the current Commissioner's term ends in 2014.The new rules also create the possibility that the prime minister and president could dismiss the new supervisor on arbitrary grounds.

The independence of data protection supervisors is guaranteed under Article 16 of the Treaty on the Functioning of the EU and Article 8 of the Charter of Fundamental Rights. In addition, EU rules on data protection (Directive 95/46/EC) require Member States to establish a supervisory body to monitor the application of the Directive acting in complete independence. This has been confirmed by the Court of Justice. In its ruling in a case concerning Germany (C-518/07 of 9 March 2010), the Court underlined that data protection supervisory authorities have to remain free from any external influence, including the direct or indirect influence of the state. The mere risk of political influence through state scrutiny is sufficient to hinder the independent performance of the supervisory authority's tasks, the Court ruled" (see the full press release).

AGCOM issues regulatory obligations as regards access to NGNs

The Italian NRA has made public its regulatory obligations (in italian) to be imposed in the wholesale broadband access and physical network infrastrucure access markets as regards access to NGNs.

Maltese regulator orders GO to compensate consumers that withdraw from its amended tv service

Since GO amended unilaterally its tv service, MCA has effected an order, under which, GO shall return to consumers that withdraw from their contract and thus return their leased set-top boxes, the amount of money that the latter have spent for their leased set top boxes.

Italian NRA approves Telecom Italia's Reference Offer regarding LLU, SLU and co-location services

AGCOM has approved TI's Reference Offer on LLU, SLU and co-location services (in italian).

AGCOM's Regulation on co-location and infrastrucure sharing

AGCOM has made public its Regulation on co-location and infrastrucure sharing (in italian).

Greek draft Law to render Hellenic Gaming Commission independent

The forthcoming Law (see the draft and preamble) that will address numerous issues in relation to Greece's economic recovery plan, contains a section providing amongst other, for the administrative and financial independence of the Hellenic Gaming Commission.

The Commission started its operations, officially, in late December (see Ministerial decision, in greek) and its framework is provided under Law 4002/2011 (in greek).