Tuesday, 30 November 2010

Draft law on licensing of antennae - Greece

The Greek Ministry of Transport and Networks issued its draft law (in cooperation with the Ministry of Environment and Infrastructure (in greek) on the licensing of antennae. This is one of the most awaited actions of the Ministry for mobile operators which were grounded from the current beuraucratic regime and court decisions declaring many of their facilities as illegal. Under the proposed law, the facilities to be established enjoy a propo legality once mobile operators submit to EETT, the Greek NRA, a complete file and after notitfying the urban planning authority.

EETT - Consultation on old markets 3 and 5

EETT, the Greek NRA, announced its consultation on provision of public telephone services at a fixed location for residential and non-residential customers which is going to last till 10 January 2011 (see EETT's press release in greek). EETT proposes to retain the exising obligations imposed on OTE, the SMP operator and which are that of price control, cost orientation, accounting separation, non-discrimination, transparency and other obligation related to bundling the product with other OTE's products. EETT has found two markets, one of geographic and one of non-geographic numbers (see the document of consultation, in greek). It should be reminded that old markets 3 and 5 were not included in the 2007 Recommendation.

Art 7. Comments to French NRA - Details of cost accounting and pricing methodologies for civil engineering access

The Commission sent its comments to ARCEP, regarding the latter's consultation on cost accounting and pricing methodologies for the access to France Telecom's (FT) civil engineering infrastructures. Given that FT holds SMP in wholesale physical network infrastructure access at a fixed location and wholesale broadband access, ARCEP sought to apportion the cost for access to its engineering infrastructure. The Commission, though reminded ARCEP that a change in the wholesale access price, as such could be caused by revisiting the aforesaid engineering costs, should lead to a national consultation procedure. In addition, the Commission suggests ARCEP to address cost accounting rules and pricing principles applicable to aerial networks as well and not only for ground facilities.

BT's appeal before CAT on ethernet services

BT filed an appeal before CAT challenging OFCOM's decision to handle a dispute related to claims for reimbursement of alleged overpayments relating to historic charges which BT had raised for backhaul extension services (“BES”) and wholesale extension services (“WES”) in connection with provision of Ethernet facilities. BT contends in essence that there was still room for commercial negotiations to take place and thus OFCOM had no ground to proceed to a dispute resolution.

Monday, 29 November 2010

Court Week

No judgment or opinion upcoming for this week too.

There is the hearing in three cases:

1) Deutsche Telekom, C-543/09 (telephone directory services);

2) Polska Telefonia Cyfrowa, C-410/09 (taking into account SMP guidelines not published in Polish);

3) Everything Everywhere (ex T-Mobile), C-276/09 (VAT, payment by mobile).

ps: the post "Court Week" will usually warn on decisions or opinions to be issued within the week. It will occasionally refer to the hearing of certain cases.

Friday, 26 November 2010

Telefonica, Prisa and Telesinco given the green light to complete the joint acquisition of Digital +

Telefonica, Prisa and Telesinco were given the green light to complete the joint acquisition of Digital + (the main satellite pay-tv platform in Spain) by the Spanish competition authority. This concentration involving Telefonica, the Spanish incumbent in telecoms, Prisa, one of the largest media groups in Spain which enjoyed sole control of Digital+ and Telesinco, having as its major shareholder Berlusconi's Mediaset, raised siginificant competition law concerns but were given finally the approval with concessions been made. For thoughts on this development see chillin' competition.

Tender for Telekom Srbjia

The Serbian Ministry of Finance extended the deadline for the acquisition of the tender's documents regarding the tender for Telekom Srbjia (see imerisia, in greek). Up to now, sources (see wireless federation) signify that three companies are interested in acquiring 51% of Telekom Srbjia, namely Telekom Austria (which already has a mobile operator in the Serbian market), Deutsche Telekom (which has the control of OTE, the Greek incumbent, and the latter has up to now 20% of Telekom Srbjia) and France Telecom. Competition law implications remain to be examined on approaching the time period for submission of the offers. It shall also be noted that Serbia is a candidate country to join the EU and thus is expected to transpose the EU electronic communications legislative framework.

Thursday, 25 November 2010

Art. 7 Comments on OFCOM's review of Wholesale fixed analogue exchange lines markets

The Commission issued its Art. 7 Decision regarding the review by the UK NRA of the Wholesale fixed analogue exchange lines markets in the UK and had no comments to make. The review concerns the analogue lines submarket of the PSTN and not ISDN2 and ISDN30 submarkets. In its review OFCOM imposes an additional obligation to KCOM (hull area), that of a Statement of Requirements (SOR) process which is intended to increase the transparency of the network access remedy and to equalise the network access conditions throughout the UK but does not go further to impose a WLR obligation which is imposed only on BT.

Reasoned Opinion to Luxembourg requesting inexpensive out-of-court dispute resolution procedure for consumers

Under Art. 34 of the Universal Services directive "Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes, involving consumers, relating to issues covered by the Directive". In view of Luxembourg's dispute resolution system not adhering to the provision, and foreseeing a singinficant delay in adopting Luxembourg's new Electronic Communications Law, the Commission decided to sent a Reasoned Opinion (see the press release).

NRA independence and impartiality on regulatory decisions - Lithuania referred to the Court and Romania sent a Reasoned Opinion

The Commission referred Lithuania to the CJEU and sent Romania a Reasoned Opinion for not complying with the Framework Directive which dictates NRA independence and the impartiality of the regulatory decision to be made (see the press release).

Lithuania, in particular, had assigned the Ministry of Communications with the task of approving the national frequency allocations and universal service rules while the latter was in control of a telecoms services provider. After Lithuania was sent a Reasoned Opinion it transferred those functions to the Ministry of Internal Affairs which also controls a telcoms service provider. The Commission asked for clarifications and Lithuania resent those functions to the Ministry of Communications resulting in the referral of Lithuania to the Court.

In a similar situation, the Ministry of Communications and Information Society of Romania is responsible for tasks like the allocation and assignment of radio frequencies while being in control of a telecoms network/service provider and was thus sent a Reasoned Opinion.

Cyprus - Consultation on Authorisation for the provision of MCV services

Further to the post below whereby OFCOM seeks to settle the issue of the licensing of the radio equipment to be installed on board vessels for the provision of MCV services, Cyprus has also opened a consultation on the authorisation for the provision of the aforesaid services (see the relevant Ministry's page, in greek).

Commission closes investigation against France on on-line gumbling

"The European Commission has ensured that French citizens will have access to a wider choice of duly authorised on-line gambling services as a result of the changes made to France's laws on on-line gambling. The Commission has therefore closed existing proceedings against France. It had previously taken the view that France's restrictions on on-line gambling activities affected foreign operators and were disproportionate to and not consistent with the objective sought, thereby breaching EU rules on the freedom to provide services. "

The Commission is still investigating on this issue Denmark, Finland, Greece, Hungary, the Netherlands and Sweden which are requested to amend their laws (see the press release and for further info visit out-law.com).

UK - Variations to the Wireless Telegraphy Act to facilitate uptake of MCV services / Wireless Telegraphy Regulations 2011

The European Commission issued a decision on spectrum related matters to facilitate the uptake of MCV services (Mobile Communication Services on Board Vessels). In March 2010 there was also a Recommendation touching upon the authorisation/licensing issue (see also the Commission's relevant website). One of the difficulties of putting in place such services, is the licensing of the radio equipment to be installed on board of the vessel so that passengers may use their mobile phones even if they do not have satellite phones or the vessel is not near a coast to use the signal afforded by terrestrial transmitters. OFCOM is thus proposing to establish an exemption from the Wireless Telegraphy Act which dictates the licensing of the equipment.

In addition, it shall be mentioned that OFCOM also has put into consultation its proposed Wireless Telegraphy (Licence Charges) Regulations 2011.

State aid for digital switch-over in Slovakia approved

"The European Commission has approved (see the press release) under EU state aid rules a €7 million aid scheme supporting parallel analogue and digital broadcasting during the transition to digital TV in Slovakia. The Commission found that the measure would not give rise to a disproportionate distortion of competition and was in line with EU state aid rules, because it was technologically neutral and limited to the minimum necessary."

Tuesday, 23 November 2010

Prior notification of concentration - Ericsson/Nortel Group (MSS & Global Services)

A prior notification of the proposed aquisition (asset-based) of the MSS & Global Srvices department of the Nortel Group by Ericsson was published in the Official Journal.

Friday, 19 November 2010

Children hotline 116 000 - Call from the Commission to 14 Member States to activate the line

Since there are several Member States not having activated the 116 000 hotline for missing children as required under the 2007/116/EC Decision in conjunction with the amended Universal Services Directive, the Commission went one to give a final call on the necessity of compliance (see press release). These States will have to have activated the line by 25 May 2011.

Jurisdiction in cases of database rights' breach - UK

If the defendant is not domiciled in the UK and the case is brought before UK Courts, then a "good arguable" case must be established so that the Court will not stay the proceedings. The High Court ruled that when there is an alleged breach of a database right then the establishment of a "good arguable" case presupposes that "the making available of the data" has taken place in the UK. The Court went on to say that the jurisdiction where the making available of the data is conducted is the place where the servers, by which the content is transmitted, are located (see for comments also out-law.com)
As Mr Justice Floyd puts it: I have come to the conclusion that the better view is that the act of making available to the public by online transmission is committed and committed only where the transmission takes place. It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception. I consider that the better construction of the provisions is that the act only occurs in the state of transmission.

Thursday, 18 November 2010

Licensing of Greek channels - Digital switch-over

In view of the chaotic situation regarding the licensing regime of TV channels in Greece, several media sources (see naftemporiki, in greek) mention that the Government intents to instigate the process of a new licensing procedure starting from the first half of 2011 with the objective of clearing the landscape by 2012.

In the meantime, DTV has arrived in Thrace (see naftemporiki, in greek) and as soon as digital channels cover the whole area, analogue TV will be switched down (see naftemporiki, in greek). It shall be mentioned that in Greece there are for the time being three main platforms. The satellite one (Nova) and two digital terrestrial, one in MPEG2 (The National Broadcaster's) and another one in MPEG4 (Digea, which includes most of the private channels).

Prior notification of a concentration - Nokia Siemens Network/Motorola Network Business

On 11 November 2010, the Commission received a prior notification concerning the acquisition of the Motorola Network Business sector of Motorola, Inc. by Nokia Siemens Networks BV which is controlled by the Nokia Corporation.

Wednesday, 17 November 2010

ACTA - Do not underestimate the Charter

While ACTA (Anti-Counterfeiting Trade Agreement) is closer than ever to become part of EU law (see the Commission relevant websiten and Euractiv)since the text is finalised, the industry is worried mainly because of the fear that excesive amounts of money will have to be spent so that ISPs are able to be in line with the Agreement's requirements. On the other hand, the Volker und Markus Schecke case (see the relevant post) shows that the Charter of Fundamental Rights may be a tool to fight back provisions that restrain the right of privacy and in that perspective it should be taken into consideration by the over-enthousiasts of this Agreement.

Tuesday, 16 November 2010

ECRU on twitter

You may find some of the legal developments regarding the sector on twitter.

Article on Must-offer obligation

In a previous post, i referred to the must-offer obligation imposed on Sky by OFCOM. It was mentioned that the Universal Services Directive provides only for a must-carry obligation, which means that under that provision, solely an obligation on platform operators to curry a specific channel may be imposed. It is not possible under the telecoms framework to impose an obligation on a channel to be transmitted through a platform. The latter may only be achieved through competition law and if there are national sector specific provisions providing for such an obligation.

I hereby provide a link to a very interesting article on the issue by Alexander Scheuer and Sebastian Schweda available in the European Audiovisual Observatory's website.

Monday, 15 November 2010

BT and Talk Talk win judicial review of Digital Economy Act

The High Court ruled that a judicial review of the disputed Digital Economy Act should be conducted (see guardian). The Act provides for sanctions on users which engage in activities against copyright laws, however its legality is questionned. The judicial review does not mean that the Act will be repealed but will likely put a pressure for a repeal by the Parliament (see out-law.com, Struan Robertson of Pinsent Masons). It should be reminded that similar national provisions were challenged in the past (see for example, the Hadopi Law in France) and their compatibility with EU law is widely challenged even after the telecoms reform which almost fell through after the EP was not eager to enable authorities to use such enforcing measures against users. Lastly, the ECJ has ruled in the past on similar issues (see the Promusicae and Tele2 cases) but shall be mentioned that after Lisbon Treaty caem into force the Charter of Fundamental Rights will come into play.

Local TV licenses tender - Greece

According to media sources (see imerisia, in greek), the Council of State (Σ.τ.Ε, the Supreme Administrative Court) it is purported to claim that a tv licenses tender should take place within one year as far as local tv licenses are concerned. It should be noted that most local tv operators do not hold a license and operate whithin a quasi illegal regime.

Friday, 12 November 2010

Must Offer obligation imposed on Sky

An extremely interesting case has arose in the UK whereby OFCOM has imposed a wholesale must offer (WMO) obligation on Sky so that other platform operators may carry its channels. OFCOM's decision in March 2010 was appealed before CAT by SKY in June 2010. Before that, SKY pursued and succeded in getting an interim order suspending the WMO obligation excepting though BT, Top-up TV, Virgin and excepting at a later stage also REAL. After Top-up TV's complaint, OFCOM ruled that Sky did not compy with its March Decision and Sky filed an appeal again before the CAT.

The interesting part of this case is that although the Universal Services Directive provides for a must-carry obligation it does not provide for a must-offer obligation. Therefore a must-offer obligation may imposed under competition law or if there is any other national provision providing that. The problematic of the issue arises as soon as the relevant authority to rule under competition law, goes into evaluating the prerequisites (e.g. minimum qualifying criteria to be set) for the imposition of such an obligation. Moreover, a must-offer obligation is likely to urge for constant surveillance and resolution of disputes, indicating that the issue is better addressed under ex-ante regulation.

I suspect that the more the digital switch-over progresses, the more cases whereby platform operators will attempt to have must-offer obligations imposed on other channels we are likely to witness. Since competition law may not be an adequate tool to deal with the issue and the telecoms framework leaves it out, it is interesting to see how will the authorities resolve it.

Wednesday, 10 November 2010

Code of conduct for the provision of multimedia services - Greece

The Greek Code of conduct for the provision of multimedia services was published in the National Gazette (in greek).

Greece transposes AVMS Directive

The Greek State issued in the National Gazette of 5/11 the Presidential Decree 109/2010 (in greek) which trasposes the latest version of the AVMS Directive (Directive 2010/13). It shall be reminded that Greece was sent a Reasoned Opinion on 20 April and had to transpose the specific instrument within 2 months (see older post).

Tuesday, 9 November 2010

Prior notification of concentrations

Prior notifications of concentrations between Tyco Electronics/ADC Telecommunications and secondly between News Corp/BSkyB as published today in the OJ.

Decision in Volker und Markus Schecke

The CJEU found the provisions of Regulations 1290/2005 and 259/2008 imposing the publicity of details of the beneficiaries of agricultural aid through a website invalid as being against Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and not as against the Data Protection Directive. The Court more specifically noted that "On the basis of all of the foregoing, Article 44a of Regulation No 1290/2005 and Regulation No 259/2008 must be declared invalid to the extent to which, with regard to natural persons who are beneficiaries of EAGF and EAFRD aid, those provisions impose an obligation to publish personal data relating to each beneficiary without drawing a distinction based on relevant criteria such as the periods during which those persons have received such aid, the frequency of such aid or the nature and amount thereof". As far as details of legal persons been made public it said that due to the onerous obligation imposed on them in general to make various details which concern them public there is no contradiction with EU law.

Consultation on open internet and net neutrality

The summary of the responses given on the consulation was published along with a press release. The positive element of the consultation is that there is a near concensus according to the Commission. It is surprising to my view that most contributors (the list of the contributors) found the new telecoms package to be transposed in national legal systems till May 2011 sufficient (my belief is that on the specific issue the telecoms regulatory regime will not be adequate to resolve in a legitimate basis potential problems). A summit on the issue will be also held on 11 November in Brussels.

Monday, 8 November 2010

Art. 7 Comments to Poland - Wholesale network infrastructure access

The Commission in its comments to UKE, the Polish NRA, mentions that the regulatory holidays proposed "indirectly" on the provision of access to the PT's (the Polish incumbent) fibre network under way, is not permissible even if access is guaranteed in dark fibre which however, makes no equal substitute to proper unbundling. Also, indefinite access to the "old" infratsructure is no substitute as well for access to the fibre network. For further interesting aspects of this communications see here.

Art. 7 Comments to Greece - Price control_Wholesale Broadband Access

The Commission in its comments to the Greek NRA, finds uncertainty on the model to be constructed as regards the price control obligation to be imposed on OTE, the Greek incumbent found to have SMP in the Wholesale Broadband Access Market. EETT, the Greek NRA, attempts to find a model whereby new entrance will not be obstructed and at the same time incentives to invest on alternative infrastructure will be retained. However, due to the uncertainty as regards to the factors that will be evaluated for constructing the model and finding an ideal equuilibrium between WLA and WBA charges, forced the Commission to ask for a more concise and clear model which will follow cost orientation as well.

Art. 7 Comments to Austria -Publicly Available Telephone Services

The Commission communicated its comments to the Austrian NRA in view of the market review of publicly available local and/or national telephone services provided at a fixed location for non-residential customers. The Commission stresses that the level of competition has not improved probably due to ineffective regulation at the wholesale level proposing additionally to reconsider the appropriateness of withdrawing the WLR obligation and the phasing out of retail obligation in the immediate future.

Art. 7 Comments to Austria - Broadband Access

The Commission addressed its comments to the Austian NRA concerning the SMP analysis of the Broadband Access market. The Commission notes that the division of work between the RTR which undertakes the market definiton excercise and the TKK which undertakes the SMP analysis and the imposition of obligations, is inefficient. On regulating only broadband access to business and not incorporating fibre products, the Commission notes that RTR should keep an eye on the incumbent's plans to roll out fibre in order to encompass such products in its new definition in mid 2011. It also points out that the time period of 4 months for the notitification of the launch of new fibre products, the NRA should better adopt the time period of 6 months as indicated in the NGA Recommendation. Lastly, the Commission mentions that cost-orientation with regard to fibre products should be adopted and congrats the NRA for opting towards a technological neutral approach by decidicng to regulate fibre products once they are launched.

Court Week

Tomorrow the CJEU will give out its judgment on the Volker und Markus Schecke Eifert case. It concerns the legality, under the Data Protection framework, of the provisions of regulations 1290/2005 and 259/2008, invoked for the uploading on a webiste of the details of farms been subsidised.

Friday, 5 November 2010

Fines on mobile operators by the Greek NRA

EETT, the Greek NRA, imposed a fine of 2 million € on Vodafone and Cosmote and a fine of 1 million € on Wind after extending the minimum initial time to be charge on calls and videocalls without notifying properly their subscribers (see press release in greek).

Thursday, 4 November 2010

Commission's Communication on review of data protection directive

The Commission gave out today its Communication concerning the expected review of the Data Protection Directive.

Media licensing of a TV channel - Greece

The past days there has been a quarrel between the Greek National Council for Radio and Television (NCRTV)and Kontra, a TV channel and its owners. The latter was imposed with a 15.000€ fine for not reporting to the Council the change of the channel's content. Kontra channel had been given license by the Council after submitting a file whereby its programme was indicated to be that of an entertaining nature and not of an informative one, cause in the latter case, stricter prerequisites would have to be fulfilled, under Law 3592-2007. In the course of its operation, the channel changed the nature of its programme into that of an informative one without reporting that to the Council and thus the NCRTV imposed the aforementioned fine.

The problematic of the issue is that the Council when reading the law, indicated that it is not possible to change the nature of the channel's content after it is licensed (reservations here because the decision has not been made publicly available and is based on media sources - see imerisia -), even if the channel reports that to the Council. Therefore, a licensed channel cannot alter its programme into an informative one after it has been licensed as that of an entertaining nature. Even if the channel's owners seem rightfully angry on such an interpretation, and even if there might be a slight chance that the specific provisions of Law 3592-2007 are not in line with the Authorisatiion Directive, there is still another problem for them. If the channel had indicated from the very beginning, in the licensing procedure, the informative nature of its content, then the provisions related to media concentration of that law would apply and since the onwers of Kontra own an analogue TV channel of national coverage they might have faced an obstacle in order to get the license. Conclusively, even if the Council's interpretation is bypassed Kontra's owners would still have another obstacle to overcome.