Wednesday, 30 March 2011

OFCOM's decision in BT-Sky dispute

OFCOM came to the conclusion that "a clause in Sky's agreement for the wholesale supply of Sky Sports 1 and Sky Sports 2 to BT, requiring BT to provide Sky with BT Visions total number of Pay Subscribers and total number of customers is in breach of Condition 14A(1)(d) and requires that clause to be removed forthwith".

Commission's Art. 7 Comments to Polish NRA on WBA market

The Commission makes extensive remarks on UKE's review of the Wholesale Broadband Access Markets. In general terms, the Commission stresses that UKE's finding that 20 Communes should be excluded from the market, necessitates the assessment of the market that those Communes compose. Also, the Commission accepts in general the imposition of geographic variations regarding remedies imposed in one geographic market,however, discrepancies may be observed in UKE's approach. Lastly, the proposal for lifting of price-regulation in markets where the incumbent enjoys a share less than 40% is not wise if the said incumbent does enjoy a market share above that of 30%. For details on trhe Commission's comments, it is advisable to have a look at the decision.

Tuesday, 29 March 2011

Commission's Art. 7 Comments to Estonian NRA on wholesale broadcasting transmission market

The Commission makes the following remarks in its decision to ECA:

"...

In the Estonian case at hand, the Commission recognises however that the specificities of the relevant market as delineated by ECA are such that market dynamics have not yet materialised as could be expected. At retail level, there appears to be at this stage no substitutability between broadcasting transmission signals provided over different transmission platforms (e.g. via cable, DSL or terrestrial networks), except in some highly populated urban areas.

In the relevant digital terrestrial wholesale broadcasting transmission services
market, competitive dynamics will most likely not occur until Starman - the operator that has recently been granted the remaining free multiplex licences - starts operations. However, the Commission notes that Starman has committed to start nationwide broadcasting in a few months time, intending to use the network of one mobile operator and potentially the masts of the SMP operator Levira, which are subject to (price) regulation. In case Starman comes to an agreement with the mobile operator concerned, this could in principle also entail investments by the latter in the upgrading of its mobile network so that it allows for offering broadcasting transmission services. As soon as the mobile network would be upgraded so that it allows either nationwide or large area broadcasting transmission coverage, Starman, potentially by complementing the network with other low masts/buildings, could exert countervailing buyer power vis-à-vis Levira and, as a result, increase its market share as well as potentially expand its network coverage. In such a case it can not be excluded that competitive conditions evolve to such an extent that ECA may have to revise its conclusions on the need for regulatory intervention on the relevant market.

The Commission therefore invites ECA to regularly verify over the review period the ineffectiveness of competition between transmission platforms in the relevant market, and in particular whether the alternative operator Starman is still impeded to compete on the terrestrial platform. In case such verification was no longer possible, regulation might need to be withdrawn."

Commission's Art. 7 Comments to British NRA on POH economic model

The Commission had no comments to make on OFCOM's decision to alter its "cost recovery approach for points of handover (POH) used to deliver partial private circuits (PPC), and more specifically the mechanism for recovering what Ofcom calls additional POH costs" from that of FAC (Fully Allocated Costs) to LRIC (see the decision). See also CAT's ruling regarding BT's PPC case recently held.

Commission's Art. 7 Comments to Irish NRA on KPIs

The Commission applaudes ComReg on its decision to adopt Key Performance Indicators in the retail narrowband access, wholesale physical network infrastructure access, wholesale broadband access and wholesale leased lines market as a means to enable monitoring of the incumbent's non-discrimination obligations in the said markets (see the decision).

Commission's Art. 7 Comments to Danish NRA on wholesale SMS termination

The Commission criticises NITA's assessment for failing to include in the proposed regulatory remedies foreign operators which may induce Danish MNOs to raise SMS termination charges as against foreign undertakings (see the decision).

Belgian NRA's decision on the adoption of the ISPA code regarding e-mail and web-space access

BIPT has issued its decision (in french) on the adoption of the IPSA code of conduct as regards e-mail and web-space access.

Italian NRA initiates consultation on 800, 1800, 2000 and 2600 MHz allotment

AGCOM launched its consultation (in italian) regarding the spectrum auction in the 800/1800/2000/2600 MHz.

Greek regulator's consultation on MSS concluded

EETT's consultation on the licensing regime of the equipment for enabling the operation of Mobile Satellite Services has been concluded. Both Inmarsat and Solaris stress the necessity for broadening the scope of operation of the complementary ground component (CGC) so that further services may be offered. In addition, they note that the proposed licensing fees for each CGC put a substantial burden on them (see their responses).

Siemens IT Services acquisition by Atos Origin approved

The European Commission approved the acquisition of Siemens IT Services by Atos Origin (see the press release).

Monday, 28 March 2011

CC's and OFT's merger guide

UK's Competition Commission and the Office of Fair Trading have jointly published a "quick guide to help businesses understand what to expect from the competition authorities when they investigate a merger".

Thursday, 24 March 2011

AG's Opinion in Interflora

AG Jaaskinen's Opinion was delivered in the Interflora case. The conclusion's as provided in the opinion were;

" 1) Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as follows:

– A sign identical with a trade mark is used ‘in relation to goods or services’ within the meaning of these provisions when it has been selected as a keyword in connection with an internet referencing service without the consent of the trade mark proprietor, and the display of ads is organised on the basis of the keyword.

– The proprietor of a trade mark is entitled to prohibit such conduct under abovementioned circumstances, in the case where that ad does not enable an average internet user, or enables the said user only with difficulty, to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or from a third party.

– An error concerning the origin of goods or services arises when the competitor’s sponsored link is liable to lead some members of the public to believe that the competitor is a member of the trade mark proprietor’s commercial network when it is not. As a result of this the trade mark proprietor has the right to prohibit the use of the keyword in advertising by the competitor in question.

2) Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94 must be interpreted as meaning that the use of a sign as a keyword in an internet referencing service in relation to goods or services identical to those covered by an identical trade mark with a reputation also falls within the scope of application of those provisions and it can be forbidden by the trade mark owner when

(a) the ad shown as a result of the internet user having typed as a search term the keyword identical with a trade mark with a reputation mentions or displays that trade mark; and

(b) the trade mark

– is either used therein as a generic term covering a class or category of goods or services;

– or the advertiser attempts thereby to benefit from its power of attraction, its reputation or its prestige, and to exploit the marketing effort expended by the proprietor of that mark in order to create and maintain the image of that mark.

3) The fact that the internet search engine operator does not permit trade mark proprietors in the relevant geographical area to block the selection of signs identical to their trade marks as keywords by other parties is as such immaterial in so far as the liability of the advertiser using of the keywords is concerned".

Greek NRA launches consultation as regards its draft QoS decision

EETT has launched its consultation (in greek) as regards the amendement to its previous Quality of Service decision. The consultation will run up until 28 April 2011.

OFCOM investigates Talk Talk for access to emergency numbers and caller location information

OFCOM has initiated an investigation against Talk Talk to verify if the latter complies with GC and in particular whether there is adequated consumer access to emergency numbers and caller location info (see OFCOM's press release).

OFCOM to resolve LLU charges dispute between Opal Telecom and BT's Openreach

Opal Telecom has submitted its case to OFCOM, requesting the return of 3 - 4 million pounds as allegedly been overcharged by Openreach in the LLU wholesale product (see OFCOM's press release).

OFCOM to resolve sub-loop unbundling charges dispute between Digital Region - Thales and BT

Digital Region and Thales have submitted their case to OFCOM, alleging that BT has been overcharging them the sub-loop which they have to rent to provide FTTC (see OFCOM's press release).

Portuguese NRA issues draft spectrum auctioning regulation

ANACOM has made public its draft Auctioning Regulation for allocation of rights of use of frequencies in the 450, 800, 900, 1800 MHz and 2,1 and 2,6 GHz bands. The consultation will run up until 2 May 2011 (see the press release). ANACOM has also issued a draft decision on the limitation of the number of rights of use of frequencies granted in the 450, 800, 900, 1800 MHz and 2,1 and 2,6 GHz bands and definition of the respective allocation procedure. The consultation will run up until 14 April 2011 (see the press release). Both these consultation on ANACOM's draft decisions are part of the process on spectrum refarming and spectrum auctioning process that has been taking part in the EU.

Irish regulator issues its updated General Authorisation regulation

ComReg has made public its final version of the General Authorisation.

Irish NRA's final decision on transparency and access obligation in wholesale terminating segments of leased lines

ComReg issued its decision as regards the transparency and access obligations imposed on Eircom in the market of wholesale terminating segments of leased lines. It decided in particular;

1) "That Eircom shall not be required to publish pricing information for WLL circuits of greater than 10 Mb/s generally. This also applies to WLLs (less than 155 Mb/s) between the urban centres listed in the Appendix to ComReg Decision No D06/08 as amended".

2) "that Eircom shall amend the frequency of billing offered by it to OAOs from a quarterly basis to a monthly basis, one month in advance of the provision of services in the market for wholesale terminating segments of leased lines. In line with this decision, Eircom shall continue to offer 30 days credit terms. In the interests of proportionality and reasonableness, these new terms will be effective from the next billing cycle, no later than twelve months from the date of this decision...".

French regulator initiates 3rd round of analysis in MTRs

ARCEP has instigated its 3rd round of analysis of mobile termination rates after it concluded its economic model. The draft decision which reduces further MTRs and with a view of adopting symmteric rates from 1 July 2011, is under consultation until 26 April 2011 (see ARCEP's press release).

German Competition Authority drops margin squeeze investigation against DT

Bundeskartellamt has dropped its investigation against DT, which concerned possible excercise of margin squeeze in relation to its wholesale LL pricing as against its wholesale bitsream pricing (see the Authority's press release).

Greek Joint Ministerial Decision on new base station licensing regime

One of the most severe problems that greek mobile operators face is the complex procedure they must follow to license their base stations. The Ministry of Infrastructure, after conducting a consultation on the issue, has issued its decision jointly with the Ministry of Environment and Energy. Broadly, the procedure entails the type-approval of the base station. Every time a base station has to be licensed, the mobile operator must submit a declaration to EETT and notify simultaneously the town planning authority and the perfecture. The declaration encompasses the type-approval, the decision by which rights of use of the spectrum have been granted and the study of electro-magnetic radiation which must meet the standards of the Hellenic Atomic Energy Commission. EETT then presumes that the base station is properly licensed unless a tenable and specific negative opinion has been delivered by either the town planing authority or the perfecture (see the decision, in greek). My ony comment is that there may be a problem of competence, since EETT will be examining the negative opinions given by the two aforementioned authorities and is entitled to reject them if they are not specific and justified. The latter evaluation is probably not foreseen in EETT's competence and the Greek Telecoms Law shall be amended accordingly. It shall be mentioned at this point that the Greek Telecoms Law is under consultation and will indeed be amended. However, the amendements foresees as regards this specific issue is too generic (see the draft law, in greek). Lastly, even in case the law is amended, there is still scope for the Supreme Administrative Court to reject such competence availed to EETT.

Wednesday, 23 March 2011

FCC approves CenturyLink/Qwest merger with concessions

The FCC has approved the merger between CenturyLink and QWest in so far as the latter abide by the regulator's terms which include amongst other the delivery of services in low prices to low-income consumers, the expansion, capacity- and geographically-wise, of their high broadband network, giving up specific aids received up till now from the Universal Service Fund, no termination of existing interconention agreements with competitors e.t.c. (see the order and the press release).

Italian regulator updates media concentration table

AGCOM has updated and delivered its 2009 media concentration table [Sistema Integrato delle Comunicazioni (SIC)] (see AGCOM's relevant page, in italian).

German Competition Authority prohibits online video platform of RTL and Pro7Sat1

"The Bundeskartellamt prohibited plans by RTL and Pro7Sat1 to form a joint venture for the creation and operation of an online video platform...the comments submitted in the meantime by the broadcasting groups on the Bundeskartellamt's preliminary assessment of the project from February could not dispel the authority's competition concerns. In particular, the companies were not prepared to make fundamental changes to the original concept of their project. The companies have still not offered to further open up the platform technically and to other television channels" (see the authority's press release).

CAT delivers judgment in BT partial private circuits case

BT appealed OFCOM's determination on the dispute between BT and each of Cable & Wireless UK, Virgin Media Limited, Global Crossing (UK) Telecommunications Limited, Verizon UK Limited, Colt Technology Services and Thus plc(together, “the Altnets”) which ordered "amongst other matters, that BT had overcharged the Altnets by £41.688 million in respect of 2 Mbit/s trunk services purchased by the Altnets from BT in the period 1 April 2005 to 30 September 2008, and that BT should make repayments to the Altnets in the amounts by which they had been overcharged, with interest". The Competition Appeal Tribunal rejected all of BT's grounds for the appeal (see the ruling and a summary of the ruling).

UK's regulator launches consultation on UK's largest ever spectrum award

The 800 MHz and 2,6 GHz will be auctioned according to OFCOM in the first quarter of 2012. The regulator sets out in its consulation its suggestions for a competitive environment and thus seeks to have 4 licensees. It should be also reminded that spectrum refaming will take place so that LTE or WIMAX technology may come to play. For more info on the auction see OFCOM's relevant page. The consultation will run up until 31 May 2011 and the Authority will launch two more consultations on technicalities of the aforementioned award procedure and on technicalities related to adjacent DTT frequencies.

Greek regulator issues interim measures regarding incumbent's vdsl project

OTE has been deploying its vdsl network and is operating parts of it in test-mode. EETT however, and before OTE launches officially its retail product, has stepped in and imposed interim measures which require from OTE to cease the launch for 6 months, provide access to alternative operators, adopt cost-oriented prices and publish details on its retail product and all these until the authority concludes its 3rd round of analysis of the relevant markets, namely those of WBA (wholesale broadband access) and WNIA (wholesale physical network infrastrucure access) markets (see EETT's press release, in greek). My sole objection is that the regulatory authority should have concluded the 3rd round of analysis timely as they were aware of the product coming.

Monday, 21 March 2011

Cypriot regulator's consultation on the fixed call termination market

OCECPR has found all 4 operators to possess SMP and as the market meets the three-criteria test- orders in its draft decision that regulatory obligations should be imposed to MTN, Cablenet, Primetel and Cyta (all in greek). The consultation will run up until 4 April 2011.

Cypriot regulator launches consultations on fixed international, national and local telephone services as well as transit services

OCECPR has launched its consultations regarding 1) the fixed international telephone services market (in greek), 2) the fixed national and local telephone services market(in greek) and 3) the trasit services market (in greek). All the abovementioned markets were withdrawed from the 2007 Recommendation and the Cypriot regulator intends to retain ex-ante regulation in all of them (where Cyta is found to possess SMP) apart from the first market, where VoIP is notably, included in the market assessment. The consultation will run up until 4 April 2011.

Cypriot regulator launches consultation on fixed call origination

OCECPR launched it consultation (in greek) on the fixed call origination market. In its provisional decision, it finds Cyta as an SMP operator and orders for teh full range of regulatory obligations to be imposed. The consultation will run up until 4 April 2011.

Polih Competition Authority approves Polska Telefonia Cyfrowa's and Polska Telefonia Komórkowa's merger

UOKiK has approved the merger between Polska Telefonia Cyfrowa and Polska Telefonia Komórkowa, with both undertakings active in the mobile market (see the Authority's press release).

Greek regulator approves incumbent's 5 offers

EETT has approved OTE's 1) Fixed + Mobile 300 (250+50F2M), 2) OTE TALK 24/7+60F2M, 3) Conn-x Internet & voice mixed 200 (Conn-x 2mbps +180 +20 F2M), 4) DP2 +30F2M (Internet & voice - DP2) and 5) DP24 + 60F2M (Internet & voice - DP-24) offers (see EETT's press release, in greek).

UK's Competition Authority and China's State Administration for Industry and Commerce sign MOU

The OFT and China's State Administration for Industry and Commerce signed a MOU "committing to cooperation and the exchange of best practice on competition and consumer policy and enforcement" (see the OFT's press release).

Court Week 21/3/2011 - 25/3/2011

This week (on Thursday 24/3), AG Jaaskinen's Opinion will be delivered in the Interflora case which concerns: "Meaning of ‘use’ of a mark – Registration by a trader with a service provider which operates an Internet search engine of a sign identical to a trade mark in order to have displayed automatically on the screen, following the entry of that sign as a search term, the URL of that trader’s website offering goods and services identical to those covered by the trade mark (‘AdWords’) – Flower delivery service".

Greek NRA selects consultant in 900/1800 MHz spectrum refarming

EETT has selected WIK consultants to assist it in the procedure of spectrum refarming in the 900/1800 MHz (auctions e.t.c) and in the assessment of the value of the 900 MHz (see the press release, in greek).

Friday, 18 March 2011

Virgin withdraws complaint against Sky over supply of SkySports 1 and 2

OFCOM closed the case initiated by Virgin's complaint against Sky over the wholesale supply of SkySports 1 and 2 HD, after the former withdrawed its complaint (see OFCOM's statement).

AG's Opinion in Airfield

AG Jaaskinen held the opinon (in french) in the Airfiled case, that Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, does not preclude national legislation from requiring the prior approval of copyright holders before any satellite broadcasting platform transmits a programme even though such approval has been given to broadcasters which have broadcasted "conventionally" a priori and subsequently re-transmit their programmes to be broadcasted by a satellite broadcasting platform.

In this case, two belgian collective societies sued Airfiels and Canal Digitaal for not complying with Copyright legislation as the latter did not acquire approval from the copyright holders of some broadcasters' programmes and which programmes where delivered to the audience by satellite. In essence, what happenned was that specific broadcasters had acquired such license from copyright holders. Those broadcasters' programmes were delivered to the audience conventionally but at a subsequent step were also re-transmitted to Airfield which used its parent's company's, Canal Digitaal's, installations to deliver them to the audience via satellite as well.

Wednesday, 16 March 2011

Greek Communications Security and Privacy Authority launches consultation on its new Interception Regulation

ADAE has launched a consultation concerning the adoption of a new Regulation on interception and privacy of communications (see also the press release, in greek). The consultation will run up until 7 April 2011 and is undertaken right after the new law on Data Retention 3917/2011 (in greek) came into force (transposing the Data Retention Directive).

Polish Competition Authority fines Polkomtel for hindering inspection

UOKiK has fined Polkomtel for hindering the former's inspection (see the press release).

Finnish regulator addresses issues raised by Premium-Rate-Short-Messages

FICORA has decided that Premium Rate Services Providers will have to send an additional SMS to consumers to ask from them their approval of the service to be delivered (see the press release).

Belgium's 3g license award initiated

BIPT has called for the initiation of the 3g auction process (see the press release).

BIS launches consultation on UK's Competition Regime

The Department of Business Innovation & Skills has launched its consultation on the review of UK's Competition Regime (see BIS' press release and the impact assessment). Amongst other, the merger of the OFT (Office of Fair Trading) and the CC (Competition Commission) is proposed (see also the OFT's press release and the CC's press release). The consultation will run up until 13 June 2011.

UK's regulator reduces MTRs

OFCOM has announced its decision to further reduce mobile termination rates (MTRs). These rates will follow a steady decreasing pattern over the next four years (see the press release).

Court Week 14/3/2011 - 18/3/2011

This week the AG's Opinion in Airfield and Canal Digitaal Airfield joined cases will be delivered which concerns the "interpretation of Article 1(2)(a) and (b) and Article 2 of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15) – Exclusive right of the author to authorise communication of his works – Transmission by a broadcasting organisation of programme-carrying signals to a digital television supplier via an independent satellite – Subsequent retransmission of those signals – Authorisation of the copyright holders".

Tuesday, 15 March 2011

Art. 7 Comment to the Dannish NRA on the LRAIC model to be applied in fixed call termination and wholesale broadband access

The Commission in its decision, makes comments only in regards to the incumbent's obligation to provide access to the multicast functionality.

It states that "According to NITA's response to the request for information, the take-up of bundled offers including IP-TV is low. Furthermore (i) the self-supply of the multicast functionality would require an alternative operator to invest only at the level of the core network and (ii) it is both compatible with the bitstream access services delivered through the copper and fibre networks but not with cable bitstream access services. In fact, TDC is not currently obliged to provide access to the multicast functionality over its cable-TV network due to technical limitations.

In view of the limited demand for bundled offers including IP-TV, the Commission notes that competition on the retail broadband market does not seem to critically depend on access to the multicast functionality. Moreover, it is not clear whether a bitstream-based alternative operator could profitably self-supply the multicast functionality by investing in the core network. Finally the obligation to provide access to the multicast functionality may not be in line with the principle of technological neutrality as the access network technologies would be subject to different access obligations. In this regard, this asymmetry in remedies could artificially incentivise access to copper and fibre networks to the detriment of the cable network, especially if IP-TV becomes a more important driver for the demand for broadband connections.

Against this background, the Commission would like to ask NITA to carefully substantiate in the final measure in how far the multicast obligation is proportionate and justified".

NITA, apart from the model to calculate charges as regards the aforementioned obligation, sets out the model's versions as regards the calculation of charges for the fibre bitstream access service and the cable bitstream access service. NITA's important contribution as regards the model to be adopted in the other two obligations, is the segmentation of the costs by adopting a two-part tariff, reflecting the line-related and capacity-related costs. In relation to fibre access, the line-related costs will be, notably, evaluated following an economic depreciation method due to NITA's negative predictions on fibre demand. Lastly, the NRAs full LRAIC model on fixed call termination will be set at a later stage.

Portuguese NRA revokes T-DAB license

ANACOM has made public its draft decision to revoke the "act allocating the right of use of frequencies associated to the Terrestrial Digital Audio Broadcasting (T-DAB) service, and consequently, of license No. ICP-004/99-RPT granted to RTP - Rádio e Televisão de Portugal" (see the press release).

Greek regulator revokes wi-max license

EETT decided to revoke Comsoline's wi-max license in 3,5 GHz due to the latter not paying the remaining 4.095.000 € of the total 20.475.000 € license fee and for not having started setting up a network to deploy wi-max (see the press release, in greek).

Monday, 14 March 2011

Commission closes infringement case against Italy on caller location info

Since caller location information is verified to be in place in "112" calls, the European Commission decided to close the pending infringement case against Italy (see the press release).

Commission warns Spain and Hungary to proceed to spectrum refarming or else they will be referred to Court

The Commission requested from Spain and Hungary, in the form of a Reasoned Opinion, to apply in full the revised GSM Directive, enabling the use of other technologies like UMTS so that other services, like mobile broadband, can be deployed. Spain and Hungary have a two months time to implement the GSM Directive and in failing to do so will be referred to the CJEU (see the press release).

Commission refers France and Spain to Court over telecom taxes

The European Commission decided to recourse to the CJEU, over the issue of the imposition of a "special tax" by France and Spain to telecom operators and which tax is allegedly set to finance public broadcasters since the latter were prohibited to have advertisments and thus the advertisement revenue was lost, contrary to the Authorisation Directive which provides that such taxes shall be imposed on operators only to recover the regulatory and respective administrative cost (see the press release).

Commission opens infringement procedure against Hungary on telecoms tax

The European Commissiion sent a letter to Hungary reguesting for information on the "special tax" levied on telecom operators. The Commission believes that those taxes are levied to recover costs other than the the regulatory and respective administrative costs that the Authorisation Directive prescribes exclusively (see the press release).

Belgium's NRA draft decision on the interoperability of CPE's in the VDSL2 reference offer

BIPT has made public its draft decision (in french) regarding the interoperability of CPEs (Customer Premises Equipment) within the ambit of the WBA (Wholesale Broadband Access) VDSL2 reference offer.

OFT and CC sign memorandum on variation termination of merger commitments

Two of UK's regulatory bodies, the Office of Fair Trade and the Competition Commission, signed a memorandum of co-operation in relation to the variation and termination of commitments undertaken by merging firms.

UK ISPs' new traffic management transparency code

UK ISPs, within the ambit of self-regulation, will sign today a new traffic management transparency code "to provide better and more easily comparable information to consumers about traffic management" (see the press release of the Broadband Stakeholder Group).

Friday, 11 March 2011

Lithuania's state aid scheme on decoders approved

Lithuania, in view of the forthcoming transition to digital tv, set up a state aid scheme to finance low income citizens in order for them to acquire digital decoders. The said scheme has been approved by the Commission.

State aid to Frech public broadcaster approved

The text of the Commission's decision approving the financial aid to France Televisions is available in the Official Journal.

Thursday, 10 March 2011

CJEU's ruling in Telefónica Móviles España

The Court ruled that there was no breach of art. 11(2) of Directive 97/13/EC on general authorisation and individual licensing by the fact that the Spanish legislation did not determine the specific allocation of the income generated by the spectrum fees and neither did the fact that there was an unjustifiable increase of the fees levied in a specific block of frequency which uses one type of technology whereas the fees levies in other blocks and which use other types of technology remained at the same levels (see also europeantelecommunicationlaw.blogspot.com).

French Competition Authority encourages FT's functional separation and deregulation in high-density areas

The French Competition Authority stated its willingness to support the eventual functional separation remedy foreseen in the new EU telecoms package as regards France Telecom. It stated also amongst other, that high density areas may be suitable for deregulation in relation to the broadband market. (see the Authority's press release, in french, the Authority's notification to ARCEP, in french and ARCEP's press release where the latter states though that functional separation should be seen, as envisaged in the teleocms package as well, as a last resort measure).

Commission's Art. 7 Comments to German regulator on MTRs

The Commission in its decision addressed BNetzA the following comments as regards the latter's notification of the Mobile Termination Rates (MTRs) set:

1) The MTRs of the two MVNOs active in the market should also be set according to the cost accounting methodology and be communicated to teh Commission and the other NRAs according to Art. 7.

2) BNetzA confirmed to the Commission that "the costs of spectrum use have been apportioned into the costs of termination as common costs on the basis of a cost causation consideration stressing that spectrum costs occurred to renew and modernise the network". In relation to approtioning the spectrum costs in that way, the Commission invited the NRA to "apply properly the cost accounting principles recalled in the Termination Rates Recommendation and to take into account in its cost calculation only those additional spectrum costs caused by the termination services".

3) Finally the Commission notes that due to the setting of MTRs in an individual basis for each operator, an assymetry in the MTRs set is established, contrary the provisions of the Termination Rates Recommendation.

Commission's Art. 7 Comments to the German regulator on the Wholesale Network Infrastructure Access market

The Commission made the following comments to BNetzA's proposed remedies in the Whholesale Network Infrastructure Access market:

1) According to BNetzA and "in relation to FttH, the access to be provided will, in BNetzA's view, depend on the network topology. As a result, in the case of a point-to-point architecture DT would be required to unbundle the fibre loop at the Optical Distribution Frame (ODF). However, in the case of a point-to-multipoint architecture such unbundling would not be technically possible. Here, BNetzA intends to require DT to provide access either at the splitter closest to the end-customer or by employing wavelength division multiplexing (WDM), although BNetzA confirmed that this solution is not yet a commercially viable option in Germany".
The Commission on the other hand notes that "an access obligation, which is entirely dependent on the network design chosen by the dominant operator could run the risk of encouraging the incumbent to make architectural choices with a view of possible regulatory consequences. In this regard the Commission underlines that the obligations should be imposed in a technology-neutral way, without regard to a specific technology or architecture implemented by the incumbent operator. Furthermore the Commission's NGA Recommendation stipulates in its Recommend 22 that access to the fibre loop in cases of FttH should be given at the most appropriate point in the network, which is normally the Metropolitan Point of Presence (MPoP)".

2) The German NRA proposes "in relation to access to DT's copper infrastructure, OPAL/ISIS, co-location, ducts and dark fibre BNetzA proposes to impose a cost orientation obligation based on a bottom-up longrun-incremental cost model (BU-LRIC)". As regards access to FTTH however, it "proposes to apply a softer price control which does not apply principles of cost orientation ... but relies on the application of a margin squeeze test to detect potentially abusive price setting. Under such price control mechanism, DT has to notify any new prices or proposed amendments to existing prices two month before they are to become effective and BNetzA then has two weeks to assess the proposals and can, within this period, prohibit the introduction of said prices (and is deemed to have accepted them if it does not make a decision within two weeks)15. BNetzA is of the view that this form of price control is sufficient to ensure cost-oriented prices for fibre access. It bases this view on the assumption that, at least for the period of the current review, the copper loop will exercise a pricing constraint on the fibre loop".
The Commission on the other hand, notes that the said margin squeeze test may indeed detect an abusive price. However, a non-abusive price which may pass the test is not necessarily cost - oriented. Moreover, such a test does not provide for legal and regulatory certainty to access seekers and thus may create "a situation which would tend to favour the vertically integrated network operator holding market power". In addition the two weeks period for approval or rejection of the price by the NRA is not sufficient taking into consideration the requirement under Art. 7 to notify the Commission and the other NRAs of the prices proposed.

3) In relation to the proposed obligation of access to DT's ducts, "the Commission also takes note that this obligation shall only apply in order to facilitate access to the street cabinet in the case of subloop unbundling / FttC. The Commission draws BNetzA's attention to the fact that the NGA Recommendation does not restrict the requirement to provide duct access to such a scenario but rather recommends that NRAs should mandate access to civil engineering infrastructure wherever duct capacity is available, i.e. potentially also between the street cabinet and the end-user".

4) Lastly, "The Commission takes note of BNetzA's argument – justifying the subsidiarity of access to "dark fibre" – that, in circumstances where the provision of duct access is technically possible, it would be reasonable to expect alternative operators to lay their own fibre. However, BNetzA does not appear to analyse in detail the cost differences of using duct or dark fibre to backhaul traffic. It cannot, therefore, be excluded that in certain cases, even where duct access would, in theory, be possible, it might only be economically feasible for alternative operators to reach the street cabinet or distribution point located at the building by accessing dark fibre instead of laying down own fibre lines in DT's ducts. In the view of the Commission, it is important that SLU is supplemented by appropriate backhaul measures to make SLU effective and that access seekers should be able to select the solution best fitting their requirements".

Commission's Art. 7 Comments to the Irish NRA on wholesale terminating segments of leased lines

The Commision, in its decision, had no comments to make in ComReg's proposed remedies. ComReg has deisgnated Eircom with SMP in the market of wholesale terminating segments of leased lines and has imposed it with transparency and access obligations. The NRA proposed first "to amend its Decision No D06/08 so that Eircom is not required to publish pricing information on wholesale leased lines (WLL) above 10 Mb/s, given that such circuits represent less than 5 % of the total WLL circuits and that the number of WLLs in service is declining. Eircom should continue to provide other authorised operators (OAOs) with all pricing information for WLLs above 10 Mb/s on request and with detailed billing information for all WLLs". Secondly, ComReg proposed "to change the billing frequency from quarterly in advance to monthly in advance while allowing Eircom to continue offering 30-day credit terms".

Irish regulator imposes a price ceiling with regard to mobile calls to 1850, 1890 and 0818 phone numbers

ComReg, responds to the excessive prices charged in mobile calls to 1850, 1890 and 0818 phone numbers, by setting a price ceiling.

Council of Europe's draft guidelines on the protection of human rights with regard to search engines and social networking services

The Council of Europe has given out its draft guidelines on the protection of human rights with regard to search engines and social networking services. The consultation will run until 18 March 2011. The authors' of these documents view is that the way search engines and social networking services operate, violate potentially a series of human rights (see the Council of Europe's webpage and huntonprivacyblog.com).

French Decree on data to be retained by hosting providers

The French Decree describes the sort of data, that hosting companies must retain and which data refer to the identity of any creator of on-line content, including blogging and video-sharing (for more detailes see edri.org and the references there).

Wednesday, 9 March 2011

Replies to the Greek NRA's consultation on the 900/1800 MHz spectrum refarming

EETT provides in its site the responses received by stakeholders on the issue of spectrum refarming in the 900/1800 MHz (Wind's and Siemens' in english and greek and Ericsson's in greek, the others were notified as classified).

Tuesday, 8 March 2011

Belgian regulator's consultation on Telenet's mobile termination rates

BIPT launched a consultation regarding Telenet's (an MVNO) termination rates (see the consultation document, in french).

The Court of Justice of the EU declares the Commission's proposal for a European Patent Court incompatible with EU law

The Commission envisages in its international agreement on a European Patent, the establishment of a European and Community Patents Court which will decide based on EU law as well. The CJEU, states in its opinion, that the agreement is incompatible with EU law, to the extent that it prescribes that EU patent issues between private parties will belong to the exclusive competence of the aforementioned court. According to the Court, if the agreement provides for such exclusivity, then the parties would not be able to recourse to national courts whcih in turn may submit a reference for a preliminary ruling before the CJEU.

Court Week 7/3/2011 - 11/3/2011

This week the judgement in Telefónica Móviles España will be delivered concerning "fees and charges applicable to undertakings holding individual licences – Imposition of pecuniary charges above and beyond those authorised by the directive and for a purpose not provided for by the latter – More advanced technologies penalised in comparison with obsolete technologies".

Also, the CJEU will deliver its opinion on whether the envisaged international agreement on patents that the Commission drew up and which amongst other provides for the establishment of the European and Community Patents Court, is compatible as it stands with EU law.

Irish regulator concludes consulation on net cost model and unfair burden assessment in the provision of universal service

ComReg has concluded its consultation on the model to be adopted for the calculation of the net cost in the provision of the universal service and the method for the assessment of the "unfair burden" incurred by universal service providers (see also the remarks received on the consultation).

Romanian NRA launches consultation on spectrum award process

Ancom launched a consultation regarding the "principles, terms and procedure related to the award of the rights to use the spectrum in the 2500 – 2690 MHz and 790 - 862 MHz frequency bands" (see the press release).

Malta's regulator updates its USO decision

MCA updates its decision related to the designated universal service undertakings and their respective obligations.

Sweden's auction in 800 MHz was closed

HI3G Access AB, Net4Mobility HB, and TeliaSonera Mobile Networks AB won the 2X10 blocks in the 800MHz in the auction organised by the Swedish NRA (see the press release).

Friday, 4 March 2011

CJEU's decision in C-143/10, Commission v Belgium

The Commission recoursed to the Court against Belgium's legislation on "must carry" for failing to traspose correctly Art. 31 of the Universal Service Directive. The Commission alleged that the contested provision does not clearly define the general - interest objectives which must be served to enable deciding on which broadcaster's programme should be carried in all platforms. It moreover, contended that the provision on the process of granting the "must carry" status lacked the element of transparency. Thirdly, the Commission held the view that the Belgian provision derrogated from Art. 31 of the US Directive since a network operator that "did not have a significant number of end-users who used that network as their principal means of receiving radio and television broadcasts was in principle subject to ‘must-carry’ obligations, unless a derogation was granted by the Minister. In that way, Belgium had imposed a general rule of a "must carry" status to all broadcasters unless the infromation provided to the Minister forced him to withdraw or not to impose that status. The Commission noted on the contrary, that Art. 31 provides for a general exception from the "must carry" status unless the respective criteria are met. The Court found all of the Commission's well founded.

Thursday, 3 March 2011

Italian NRA rings the bell to the Italian government and parliament on the transposition of the telecoms package

AGCOM, amongst others, signals to the Italian governement and parliament on the necessity of its taking part in the process of the transposition of the new EU telecoms framework which shall be trasposed till May 2011 (see the press release).

National roaming agreements signed by Free Mobile and France Telecom endorsed by the French NRA

ARCEP approved the said agreement which will enable Free, which holds the new 4rth 3g license, to complete the set-up and launch of its 3g network (see the press release).

UK Secretary of State for Culture intends to give the green light to the BSkyB's acquisition by NewsCorp.

The Secretary following the advice from Ofcom and the OFT, intends to accept News Corporation's undertakings, the most important of which is the divestiture of SKY News, on their proposed merger with BSkyB in lieu of a referral to the Competition Commission (see the press release). The whole issue is being put under consultation till 21 March 2011.

Wireless Telegraphy (Mobile Communication Services on Board Ships) (Exemption) Regulations 2011 in place by the UK regulator

OFCOM has put in place the said regulations to assist the development of MCV services and make it easier to get ther respective equipment licensed (see the statement).

UK regulator puts Automatically Renewable Contracts under consultation

Automatically Renewable Contracts are the contracts "that, at the end of a minimum contract period (MCP) – whether this is an initial or subsequent period – roll forward to a new MCP by default, unless customers proactively inform their Communications Provider (CP) that they do not wish this to happen". OFCOM believes that "that ARCs are damaging to consumers and competition in communications markets" and thus has put them in question under its consultation.

Radio must not be left behind in the digital revolution according to Kroes

Commissioner Kroes stated in her speech in the Association of European Radio's annual conference that radio must not lag behind in the digital era. But when the Commission itself regulates and directs Member States having its focus on the tv - telecom operators battle, isn't it reasonable to believe that no impetus is given for the Radio to get 'digitalised'?

Commission raids eBook Publishers

The European Commission launched several raids in major eBook Publishers' premises after concerns raised for establishing a cartel and engagement in other anti-competitive practices (see the press release).

Nortel's Multi-Service Switching business acquisition by Ericsson approved by the European Commission

The Commission approved the said merger (see the press release).

Wednesday, 2 March 2011

Office of Fair Trade publishes investigation procedures guide in competition cases

The OFT has published its guide to its investigation procedures in competition law cases. It has moreover, appointed a Procedural Adjudicator to handle procedural issues raised by interested parties whtin the context of an investigation (see the press release).

Irish regulator issues information notice on mobile gateways

ComReg issued an information notice concerning the use of mobile gateways (equipment carrying a SIM card, enabling the routing of a fixed call through the gateway to other mobile networks and thus permits the avoidance of fixed-to-mobile termination rates).

Court Week 28/2/2011 - 4/3/2011

For this week we have the upcoming judgment in C-134/10 Commission v Belgium concerning the criteria for the award of the ‘must-carry’ status as regards radio and television.

Tuesday, 1 March 2011

Moldova's regulator announces intent to designate Moldtelecom as SMP provider in retail fixed telephony

ANRCETI announed its intent to designate Moldtelcom as SMP undetaking in the market of access to the public telephone network at fixed location. It will then consult with the respective Ministry on the tariffs to be imposed (see the press release).

Irish regulator issues GSM interim licenses

ComReg has issued interim licenses to O2 and Vodafone in order to coordinate in a better way the wide frequency re-organisation which is under consultation in the 800 and 900 MHz

Austrian NRA launches consulation on Mobile Frequency Management

TKK, in view of the spectrum refarming process, decided to launch a consultation on the management of the mobile frequencies (below 1 GHz) so that it come up with a plan on further expansion of wireless broadband (see the press release).

Italian NRA's consultation on the incumbent's RO in terminating segments of leased lines

AGCOM has launched a consultation on Telecom Italia's Reference Offer to be approved as regards the terminating segments of leased lines (in italian).

Italian NRA launches consultation on VoIP and Net Neutrality

AGCOM has launched two consultation (see the press release, in italian) as regards VoIP and Net Neutrality (see the document, in italian).

Italian NRA approves quality indicators in LLU and WBA

AGCOM has approved Telcom Italia's quality indicators in the provision of LLU and WBA to competitive providers (in italian).

Italian NRAs MTR Cost Model

The Italian NRA after finalising the required procedure, publishes its new Mobile Termination Rates Cost Model (in italian).

Italian NRA imposes compensation in favour of users

AGCOM has issued regulations (in italian) imposing compensation in favour of users which have not received adequate service by their operators.

Art. 29 WP on RFID. Embracing privacy by design.

The Art. 29 WP has issued its opinion on the proposal of a revised impact assessment of RFID and has issued its impact assessment.