Friday, 30 September 2011

BT and Talk Talk appeal before CAT OFCOM's price control in WBA market 1

BT appealed OFCOM's decision on the price control to be imposed in the WBA market 1. The grounds of appeal were:

"1. OFCOM’s decision to disallow pension deficit repair payment costs (“PDR”) was made on the basis of a misapplication of the fundamental principles which underlie the model of RPI-X regulation (the WBA Charge Control set out in the Statement is in the form of an RPI-X charge control), and accordingly its own statutory duties and regulatory objectives;

2. OFCOM erred in fact and/or law in failing to reflect the cost of embedded debt in assessing BT’s cost of debt. Rather than calculating a weighted average that reflects the cost of such embedded debt, as well as the cost of other debt, OFCOM used only an estimated cost of new debt; and

3. OFCOM erred in calculating BT’s Weighted Average Cost of Capital (“WACC”) on the basis of its assumption of gearing. That assumption was unjustified by the evidence and leads to a significant, and unwarranted, reduction in the cost of capital allowed by OFCOM to BT".

Talk Talk appealed the same measure. The grounds for its appeals were:

"1. OFCOM failed to take proper and sufficient steps to satisfy itself that it had complied with its obligation in section 86 of the 2003 Act only to impose an SMP services condition subsequent to a market power determination when there has been no material change in the relevant market since the SMP determination was made.

2. Alternatively, insofar as OFCOM did take sufficient steps to ask itself the correct question and equip itself with the relevant information necessary to decide whether there had been a material change in Market 1, it erred in deciding that there had been no material change as a result of TalkTalk’s local loop unbundling (“LLU”) roll out plans".

Thursday, 29 September 2011

Commission's Art. 7 Comments to NRA of Gibraltar on fixed call origination and termination

The European Commission, in its decision, made the following comments to GRA on the latters review of the fixed call origination and termination markets:

"Benchmarking methodology

The Commission notes that to set the level of the SMP operators’ call origination and call termination charges as well as the glide path towards a 2014 ‘efficient’ target price, the GRA proposes to use as a benchmark the reference rates provided in the 15th Progress Report on the Single European Electronic Communications Market (2009). The Commission also notes that the GRA does not intend to start working on an LRIC model or any alternative methodology within the timeframe of the market review but will set in the next round of market review, if appropriate, a new glide path using the benchmark rates from those Member States that have implemented an LRIC model by then.

The Commission recalls that, in line with Recommend 2 of the Termination Rates Recommendation, the evaluation of efficient costs should be, as a matter of principle, based on current costs and the use of a bottom-up LRIC model as the relevant cost methodology. However, in view of the GRA’s limited resources and the very small size of the market (only around 23 000 fixed lines are concerned), the Commission recognises that the GRA is facing exceptional circumstances within the meaning of Recommend 12 of the Termination Rates Recommendation, and may therefore implement an alternative methodology such as using a benchmark. Nevertheless, the Commission wishes to stress that such a benchmarking solution must result in outcomes consistent with the Recommendation and, by way of detail, generate efficient outcomes consistent with those in a competitive market. Therefore, as already stressed in previous cases and reiterated in Case GI/2009/0976, cost-orientation of termination rates can be ensured by benchmarking only to the extent that this results in termination rates that serve to promote efficiency and competition (in the retail markets) and maximise the benefits to the consumer. Moreover, any benchmarking approach should be supported by reference to those cost-based termination rates in other Member States that take efficiency considerations into account.

In this respect, the Commission underlines that the proposed 2009 average termination rate does not provide any accurate proxy for an efficient target rate, since, by that date, most Member States had neither implemented an LRIC model nor set a transitional glide path taking into account efficiency considerations. Against this background, and to ensure an outcome consistent with the Recommendation, the Commission requests the GRA to refine its benchmarking approach in order to take into account rates that are already based on the recommended approach and appropriately address efficiency considerations (e.g. costs of the most efficient technology available). This should result in a glide path towards a more accurate efficient target rate. To this end, the Commission encourages the GRA to start working, together with BEREC and its related working groups well suited to providing practical support and guidance, on an appropriate glide path and adequate price regulation, thereby overcoming any limitations with regard to resources or the size of the market concerned.

Same levels of rates applicable to origination and termination rates


The Commission notes that, in the absence of comparative data on the costs for providing call origination and call termination, the GRA proposes to set the two rates at the same level for the market review period in question, given that call origination and call termination services use the same network elements and also incur the same operational expenditure in Gibraltar. The Commission requests the GRA to better substantiate its approach in its final measure. In this context, the Commission recalls that, in principle, both call origination and call termination rates should be based on specific costs incurred (and follow the recommended LRIC methodology for call termination rates). The GRA should, therefore, collect without delay comparative data on the costs for providing call origination and call termination in Gibraltar, in order to set the two rates by reference to their relevant costs in the next market review.

Reasoned Opinions to Belgium and UK on AVMS Directive

The European Commission sent a R.O. to Belgium owing to the latter not having adopted a federal law transposing the AVMS Directive, leaving in that way AV services provided in Brussels in languages other than French or Flemish non regulated. The Commission opened an infringement procedure against the UK for the latter's tasposition of the AVMS DIrective not including Gibraltar (see the press release).

Commission opens infringement procedure against Hungary on telecom tax

"The European Commission has requested Hungary to abolish specific turnover tax on telecoms operators which were introduced in October 2010. The Commission considers this tax is illegal under EU telecoms rules because revenue from the taxes is used for the Government's central budget and not for meeting the specific costs of regulating the telecoms sector" (see the press release).

Commission sends Reasoned Opinion to Denmark on universal service financing

"The European Commission has decided to formally request Denmark to comply fully with EU rules regarding the financing of basic telecoms services provided to consumers, known as "universal services". In particular, the Commission has asked Denmark to remove maritime emergency services from the list of services which the telecom sector has to bear the cost of providing" (see the press release).

Infringement procedure against France by the Commission on DTV licenses

The European Commission sent France a Reasoned Opinion calling the latter to ensure non-discrimination on the allocation of DTV frequencies. "The Commission is of the opinion that the French system under which three incumbent broadcasters were granted additional TV channels (‘compensatory channels’) without any competitive tendering procedure is contrary to European Union law, penalises rival broadcasters and deprives French viewers of more attractive programming" (see the press release).

Wednesday, 28 September 2011

EU will not sign ACTA

Legal sources (see out-law.com) indicate that the EU will not sign ACTA which is scheduled for signing this weekend (check out-law's article).

A dispute between BT and Talk Talk has been submitted to OFCOM regarding BT's LLU Metallic Path Facility rental charges

"Up to 31 March 2011, BTs charges for MPF rental were subject to a charge control set by Ofcom. Ofcom has consulted on a new charge control but has yet to conclude on this (the Consultation see related item). Since 1 April 2011, in the absence of a charge control BT has charged 91.50 for MPF annual rental. Talk Talk contends that based on proposals set out in the Consultation, this charge is too high" (see the press release).

Commission's Art. 7 Comments to OFCOM's on its change of price remedies in the leased lines market

As regards OFCOM's points of handover (POH) pricing review, the European Commission, in its decision, had no comments to make on the NRAs changes.

OFCOM proposed "to make changes only to the modelling assumptions and cost estimates. These result in lower additional POH costs (£ 2.9m, within a range from £ 2.7 to £ 3.4m on the proposed LRIC basis). However, Ofcom maintained the proposals to (i) implement a cost recovery approach based on LRIC and (ii) set the additional POH charges on the basis of its own bottom-up LRIC model.

As regards charge control, Ofcom proposed (i) that the increases in the charges for Type II POHs no longer be phased in but be introduced in a single change13 and (ii) that the new additional POH charge control be applied from 1 October 2011 to 30 September 2012".

Monday, 26 September 2011

Brussels Court of Appeals rejects Belgacoms appeal against a 800.000 € fine for non properly communicated internet tariff increase

"The Court of Appeal confirms that Belgacom neglected to correctly inform its subscribers of the possibility to terminate their subscriptions free of charge at the same time it notified them of the price increases" (see BIPT's press release).

Commission's Art. 7 Comments to the German NRA on the latter's price control remedies in the fixed call origination and termination markets

The European Commission, in its decision, made the following comments to BNetzA, on the latter's amendments to Deutsche Telekom's price control remedies in the fixed call origination and termination markets:

Need for an appropriate price control and cost accounting obligation


BNetzA's proposal foresees to set cost-oriented call termination rates for the incumbent, Telekom Deutschland GmbH (DT), on the basis of an "advanced European benchmarking" approach. The Commission notes BNetzA's assertion that the reference countries have been chosen based on robust efficiency criteria and that the reference tariffs have been adapted to reflect the competitive conditions prevailing in Germany. However, the Commission would like to point out that it has on numerous occasions expressed the view that termination rates should be set at the cost which would be faced by an efficient operator providing the relevant service and that it has invited national regulators in its Termination Rates Recommendation to evaluate efficient costs based on current costs and by employing a bottom-up modelling approach using long-run incremental costs (BU-LRIC) as the relevant cost methodology.

The Commission acknowledges the fact that BNetzA is working since 2009 on such a BU-LRIC model and that in response to the Commission's request for information it committed to calculate the termination rates for the following period, i.e. as of 1 December 2012, on the basis of such a BU-LRIC model (i.e. based on the costs incurred by an efficient operator). However, given that the work undertaken on such a BU-LRIC model has commenced two years ago and in view of the fact that the Termination Rates Recommendation has also been adopted over two years ago the Commission invites BNetzA to align, as soon as possible, its cost accounting methodology with the recommended cost accounting principles of the Termination Rates Recommendation. The Commission stresses that this may allow for a swifter convergence of fixed termination rates towards the efficient level and would help to avoid the need for sudden drops or unduly
steep glide paths at the end of the transition period provided for in the Termination Rates Recommendation.

No cost orientation and price control obligation for fixed alternative
network operators


The present notification proposes to set termination rates only for the incumbent, DT, and, therefore, continues to exclude fixed ANOs, who are also found to have SMP for call termination on their respective networks, from being subject to a cost-orientation and/or price control obligation. The Commission stresses that this approach is not in line with the recommendations of the Commission set out in the Termination Rates Recommendation of 2009. In this regard the Commission reminds BNetzA that already in 2009 and for the reasons set out in its comments letter in case DE/2009/0948 the Commission asked the German regulator to adopt an adequate ex ante regulation of termination rates for all fixed network operators found to have SMP. Whilst recognising BNetzA's commitment to set termination rates based on a BU-LRIC model by the end of 2012, the Commission re-iterates the request to BNetzA to impose an obligation to charge tariffs corresponding to cost-orientation in an efficient manner, by way of a procedure which sets a cost-oriented symmetric termination rate to be applied to all operators, thereby applying the Termination Rates Recommendation at the earliest possibility.

OTE comes to agreement with the union

The Greek incumbent came into an agreement with the Union on a new Collective Agreement (see naftemporiki.gr, in greek).

Polish Telecoms Law amendments enacted

The amendments (see UKE's press release to check them as well) of the Polish Telecom Law were finaly approved.

Friday, 23 September 2011

CJEU decides on Interflora case

The CJEU ruled in :

"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 meaning that the proprietor of a trade mark is entitled to prevent a competitor from advertising – on the basis of a keyword which is identical with the trade mark and which has been selected in an internet referencing service by the competitor without the proprietor’s consent – goods or services identical with those for which that mark is registered, where that use is liable to have an adverse effect on one of the functions of the trade mark. Such use:

– adversely affects the trade mark’s function of indicating origin where the advertising displayed on the basis of that keyword does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods or services concerned by the advertisement originate from the proprietor of the trade mark or an undertaking economically linked to that proprietor or, on the contrary, originate from a third party;

– does not adversely affect, in the context of an internet referencing service having the characteristics of the service at issue in the main proceedings, the trade mark’s advertising function; and

– adversely affects the trade mark’s investment function if it substantially interferes with the proprietor’s use of its trade mark to acquire or preserve a reputation capable of attracting consumers and retaining their loyalty.

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 proprietor of a trade mark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark, which the competitor has, without the proprietor’s consent, selected in an internet referencing service, where the competitor thereby takes unfair advantage of the distinctive character or repute of the trade mark (free-riding) or where the advertising is detrimental to that distinctive character (dilution) or to that repute (tarnishment).

Advertising on the basis of such a keyword is detrimental to the distinctive character of a trade mark with a reputation (dilution) if, for example, it contributes to turning that trade mark into a generic term.

By contrast, the proprietor of a trade mark with a reputation is not entitled to prevent, inter alia, advertisements displayed by competitors on the basis of keywords corresponding to that trade mark, which put forward – without offering a mere imitation of the goods or services of the proprietor of that trade mark, without causing dilution or tarnishment and without, moreover, adversely affecting the functions of the trade mark with a reputation – an alternative to the goods or services of the proprietor of that mark" ( http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C-323/09 )

CJEU's ruling in Roj TV and Mesopotamia Broadcast

The CJEU ruled in cases C-244,245/10 that "Article 22a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, must be interpreted as meaning that facts such as those at issue in the disputes in the main proceedings, covered by a rule of national law prohibiting infringement of the principles of international understanding, must be regarded as being included in the concept of ‘incitement to hatred on grounds of race, sex, religion or nationality’. That article does not preclude a Member State from adopting measures against a broadcaster established in another Member State, pursuant to a general law such as the Law governing the public law of associations (Gesetz zur Regelung des öffentlichen Vereinsrechts), of 5 August 1964, as amended by Paragraph 6 of the Law of 21 December 2007, on the ground that the activities and objectives of that broadcaster run counter to the prohibition of the infringement of the principles of international understanding, provided that those measures do not prevent retransmission per se on the territory of the receiving Member State of television broadcasts made by that broadcaster from another Member State, this being a matter to be determined by the national court".

Madison Square Garden LP must offer Verizon and AT&T access to its HD versions of its regional sports channels

The FCC ruled "MSG LP to enter into an agreement to license the MSG HD and MSG+ HD networks to AT&T (see order) and Verizon (see order) on non-discriminatory rates, terms, and conditions within 30 days...".

Always interesting to see Verizon and AT&T rest upon provisions influenced (to say the least) by the Essential Facilities Doctrine...

Draft obligations on Moldova's SMP operator in fixed call origination and transit markets

ANRCETI, the regulator, consults on its draft obligations to be imposed on JSC Moldtelecom which holds SMP in the fixed call origination and tranist markets. The draft obligations are: "1) to ensure access to specific network elements, including interconnection, for call origination (market 2) and for traffic transit (market 9), to associated facilities and their use; 2) to ensure transparency, including by publication of reference interconnection offers; 3) admitting of no discrimination of providers requesting interconnection for call origination and traffic transit; 4) orientation of prices for interconnection services, call origination and traffic transit services, other associated services to LRIC costs; 5) separate accounting" (see the press release).

FCC to enable sending text, photos, videos and other data to 911 call centers

"FCC moves ahead on efforts to prioritize 911 calls and enable consumers to send text, photos, videos and data to 911 call centers during emergencies" (see the press release and NPRM).

French 4g license procedure closed

The French 4g licenses in the 2,6 GHz band have been allocated.

- "The firm Bouygues Telecom will be allocated a duplex frequency block of 15 MHz, for which the company bid the sum of €228,011,012 and made a commitment to host MVNOs on its network.

- The firm Free Mobile will be allocated a duplex frequency block of 20 MHz, for which the company bid the sum of €271,000,000 and made a commitment to host MVNOs on its network.

- The firm Orange France will be allocated a duplex frequency block of 20 MHz, for which the company bid the sum of €287,118,501 and made a commitment to host MVNOs on its network.

- The firm Société Française du Radiotéléphone (SFR) will be allocated a duplex frequency block of 15 MHz, for which the company bid the sum of €150,000,000, and did not make a commitment to host MVNOs on its network" (see press release).

Thursday, 22 September 2011

French NCA withdraws approval on Canal Plus acquisition of PTS and imposes fine

"The Autorité de la concurrence has just issued a decision in which it establishes that Canal Plus Group did not fulfill several commitments – including key ones – that were attached to the decision authorizing in 2006 the acquisition of TPS and CanalSatellite by Vivendi Universal and Canal Plus Group" (see press release : http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=389&id_article=1697)

OFCOM's LLCC PPC Points of Handover pricing review

OFCOM has issued its final decision on the charge control on BT in relation to its Point of Handover pricing (see http://stakeholders.ofcom.org.uk/consultations/revision-points-handover-pricing/final-statement/).

Wednesday, 21 September 2011

Moldova's regulator sets JSC Moldtelecom as SMP in wholesale terminal and trunk segment markets

ANRCETI set JSC Moldtelecom as SMP in wholesale terminal and trunk segment markets (see the press release: http://en.anrceti.md/news19092011).

Commission's Art. 7 Comments to Slovakian NRA on the latter's price control remedy in the fixed call termnation market

The European Commission had no comments to make, in its decision, to TÚSR as regards the latter's proposed levels of the price caps for local and single transit termination. TÚSR proposed to set symmetric fixed termination rates (FTRs) for nine operators using the FL-LRAIC bottom-up price calculation method.

Greek tender on 900, 1800 MHz

The Greek NRA launched its consultation (see the press release) on its draft tender and annexes after the Ministry issued its Ministerial Decision on the use of rights and the procedure regarding the 900/1800 MHz soectrum auction. According to EETT, the Ministry concurred in most aspects with EETT's suggestions (see press release). The price for the 2X5 MHz block has been set at around 40 million euros on average (see alson imerisia.gr).

Belgian regulator issues guidelines on mobile infrastructure sharing

BIPT has issued a draft communication containing guidelines on mobile infrastructure sharing.

Spanish NCA opens proceedings against Microsoft

"In the course of investigating the case, the Investigations Division has had access to certain information which may point to the existence of prima facie evidence that MICROSOFT has breached articles 1 and 2 of the Spanish Competition Act and articles 101 and 102 of the Treaty on the Functioning of the European Union, as a consequence of MICROSOFT’s actions and agreements aimed at unjustifiably preventing or limiting the resale of software licences of this operator" (see NCA's press release).

Tuesday, 20 September 2011

Danish online gambling duties in line with EU State Aid rules

"The Danish Gaming Duties Act foresees that online providers of casino games and gaming machines will be subject to a duty of 20 % on the gross gaming revenue (GGR stakes minus winnings), compared with up to 75 % for land-based casinos and gaming halls.

In assessing the law's compatibility with Article 107.3.c of the Treaty on the Functioning of the EU, the Commission took into account the availability of sometimes illegal online offers by providers established in other countries or subject to low or even no taxation. A duty making the offer of the Danish online providers too expensive would have rendered the liberalisation of the market devoid of purpose. The Commission's noted the law's other objectives to bring illegal gambling within the remit of legality whist protecting the young and the vulnerable from becoming addicted to gambling" (see the Commission's full press release).

Monday, 19 September 2011

Maltese NRA consults on retail fixed access market

MCA has launched its consultation on its review of the retail fixed access market (see relevant page).

Court Week

On Thurday 22/09/2011 two Judgements will be delivered.

The first one refers to the Interflora case: "Reference for a preliminary ruling – Interpretation of Article 5(1)(a) and (2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Article 9(1)(a) and (c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Articles 12(1), 13(1) and 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce' (OJ 2000 L 178, p. 1) – 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’)".

The second on refers to the Mesopotamia Broadcast and Roj TV: "Reference for a preliminary ruling – Bundesverwaltungsgericht – Interpretation of Article 2a and 22a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of 30 June 1997 (OJ 1997 L 202, p. 60) – Prohibition of an activity, opposed by the authorities of a Member State, of a television broadcaster established in another Member State for infringement of the principles of international understanding – Exclusion from the power of the recipient Member State of the ability to prevent, in its territory, television broadcasts from other Member States for reasons which fall within the fields coordinated by Directive 89/552/EEC – Admissibility of the infringement of the principles of international understanding as a ground for prohibition falling within the fields coordinated by that directive ".

US changes to a first-to-file patent system

After the enaction of the Leahy-Smith America Invents Act, the US adopts the first-to-file patent system (see also news.cnet.com).

Bad news for spectrum users owing to the American Jobs Act 2011

The Obama administration will pass on to spectrum users a significant portion of its envisaged badget to decrease unemployment under the American Jobs Act 2011 (see comments also in commlawblog.com).

Friday, 16 September 2011

Proposals for new texts regarding the application of state aid rules to Services of General Economic Interest (SGEI)

The European Commission has released its proposed new texts regarding the application of state aid rules to Services of General Economic Interest (SGEI) for consultation (see the relevant page).

Complete wireless broadband coverage of North-Rhine Westphalia and Saarland

"The mobile companies have met the coverage obligation in the 800 MHz band in North-Rhine Westphalia and Saarland, the Bundesnetzagentur announced today. The three companies, Telekom Deutschland GmbH, Vodafone D2 GmbH and Telefonica Germany GmbH & Co. OHG are now able to use the frequencies assigned to them in this band as they wish in the two federal states" (see the German NRA's press release).

UK Competitive Providers pose objections on Openreach 's trials for fibre only areas

As the Federation of Communication Services puts it:

The “Equivalence of Inputs” model (including the provision of WLR and the creation of Openreach) were fundamental to the Undertakings offered by BT and accepted by Ofcom in lieu of a reference to the Competition Commission. We believe that the proposals for provision of voice services in fibre only areas represent a significant dilution of this concept of equivalence.

For this reason, we believe that it is inappropriate to progress these pilots until the issue of provision of a voice service for CPs who operate a service provider or reseller model, and who cannot therefore consume Fibre Voice Access (FVA), is satisfactorily resolved. (see the press release).

Irish NRA issues final decision regarding price control remedies in fixed call origination and termination

ComReg has issued its decision on the price control remedy (encompassing finally a margin squeeze test) to be imposed as regards the fixed call origination and termination market.

Romanian NRA abstains from charging monitoring fee and reduces spectrum fee

In view of the economic impact that the financial crisis in Romania (and not only...) has had on operators, ANCOM decided not to charge the monitoring fee and reduce spectum fees by 15% (see the press release).

Polish NCA approves France Telecom/Deutsche Telekom joint venture

"In consequence of the transaction in a joint undertaking will be created in the form of joint-stock company with headquarters in Brussels. Concentration participants will hold 50 percent shares in the newly created company, whose name has not yet been determined. Its purpose will be supplying both companies with products and services."

"The France Telecom group includes, among others, Telekomunikacja Polska and Polska Telefonia Komórkowa Centertel, the operator of Orange network. Deutsche Telekom Group operates in Poland through Polska Telefonia Cyfrowa, the operator of T-Mobile."

"After the antitrust proceedings the President of the Authority concluded that the concentration will not significantly reduce competition." (see the UOKiK's press release).

Thursday, 15 September 2011

Court's decision in DVBT Berlin Brandenburg case

The CJEU confirmed the General Court's and the Commission's findings that the aid provided to private broadcasters for the dtv switchover constituted illegal state aid (see the decision, in french: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C-544/09%20P). "The ECJ ruled that the German support for the costs incurred by private broadcasters due to the switchover from analogous to digital television on the terrestrial platform constituted illegal State aid ... The Court further dismissed Germany's argument that the principle of technology neutrality should not play a role in its State aid analysis. The Court found that this was a general principle enshrined in the Commission's communication of 2003 on the digital switchover and does not allow that State support discriminates between different platforms. State support given exclusively to a terrestrial platform infringes this principle, unless the Member State documents that there are structural competition problems from the existing offers from other platforms. Germany did not demonstrate that its State aid was aimed at correcting such problem" (see the Commission's press release: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/605&format=HTML&aged=0&language=EN).

ps: excuse me for providing the whole link to documents inactive, but there is some sort of malfunction in blogger).

4 bidders for France's 2,6 GHz 4g license

"ARCEP has received applications from Bouygues Telecom, Free Mobile, Orange France and SFR for the award of a 4G licence in the 2.6 GHz band" (see the press release).

Dispute between O2 and each of Vodafone and H3G about wholesale mobile voice call termination charges in October 2010 closed

The dispute between O2 and each of Vodafone and H3G about wholesale mobile voice call termination charges in October 2010 was closed by the UK regulator (see relevant page).

Greek NRA consults on terms of use of specific frequencies

EETT launched its consultation regarding the change of use attributed to specific frequencies. Most importantly it proceeds with the renowned spectrum refarming in the 900 and 1800 MHz band (see the press release, in greek).

Greek NRA consults on spectrum fees

Greek NRA launched a consultation on the revision of its spectrum fees regulation (see press release and the document).

Wednesday, 14 September 2011

OFCOM bans rollover contracts

OFCOM prohibits Automatically Renewable Contracts (see the relevant page: stakeholders.ofcom.org.uk/consultations/arcs/statement).

Tuesday, 13 September 2011

OFCOM consults on BT' request for waiver of BT’s price notification requirements for WLR and MPF rental prices

OFCOM launched a consultation on its proposal after BT's request "to waive the price notification requirement in relation to wholesale line rental (WLR) and metallic path facility (MPF) rental prices, which will allow BT (i.e. Openreach) to introduce its Copper Incentive Scheme offer ... in advance of the normal 90 days' written notice period" (see the relevant page).

Greek Consultation on 900, 1800 MHz spectrum auction and refarming closed

Cosmote, Wind and Vodafone made comments on the consultation regarding the 900 and 1800 MHz spectrum auction and refarming. Their comments focused on the auction procedure, the bands to be offered and of course the allegedly excessive price (see EETT's press release, in greek).

Monday, 12 September 2011

Moldova's NRA consults on RIO

ANRCETI consults on its draft decisions on the Reference Interconnection Offers of JSC Moldtelecom, JSC Orange Moldova and JSC Moldcell (see press release).

Belgian NRA issues draft decision on its review of the fixed call termination market

BIPT has issued its draft decision concerning its market analysis of the fixed call termination market.

Irish NRA extends deadline for response to draft decision on spectrum release

ComReg has extended to 14 October 2011, the deadline for response to its consultation (see press release) on its draft decision for the proposed auction of rights of use in the 800 MHz, 900 MHz and 1800 MHz radio spectrum bands. "This auction would assign spectrum rights across these three bands for the period 2013 to 2030...The main features of the proposed auction are as follows:

- 28 blocks of spectrum to be made available in total, with each block comprising 2 × 5 MHz of spectrum;
- the winners will be those who make the highest bids;
- two auction phases – the first to determine the amount of spectrum a bidder has won rights to and the second phase to determine the location in the relevant spectrum band;
- and a competition cap on what any bidder can win of up to 10 blocks of spectrum, with a maximum of four blocks below 1000 MHz".

See draft decision, annexes of the latter, Further update report on benchmarking, and Issues relating to the award of spectrum in multiple bands in Ireland.

French Administrative Supreme Court rejects motion for suspension of 4g license award procedure

The Conseil d’État rejected Free's demand for suspension of the 4g license award procedure (see French NRA's newsletter, in french).

French NRA reviews market of mobile call termination for three operators

"ARCEP begins the market analysis process for wholesale mobile voice call termination for Free Mobile, LycaMobile and Oméa Telecom in Metropolitan France" (see press release).

Notification to the Commission of Microsoft/Skype concentration

The European Commission received prior notification of the Microsoft/Skype concentration.

Commission's Art. 7 Comments to Polish NRA on the latter's approval of the incumbent's vdsl reference offer

The European Commission had no comments to make, in its decision, to the Polish NRA concerning the latter's approval of the incumbent's vdsl bitstream product reference offer.

Friday, 9 September 2011

France Telecom state aid case

The AG, NIILO JÄÄSKINEN, provided in his opinion (in french) the dismissal of FT's appeal.

Thursday, 8 September 2011

New Greek Gambling Law published in the National Gazette

The new Gambling Law (Law No. 4002/2011) has been published in the National Gezette. Besides regulating traditional gambling activities, it provides the scope for operating internet gambling.

Wednesday, 7 September 2011

Polish NCA approves TV deal with concessions

"The President of the Office of Competition and Consumer Protection has issued her consent to the transaction between two companies providing chargeable cable tv services. The concentration may be implemented under specified conditions" (see press release).

Sprint files suit to block AT&T/T-mobile merger

On top of last week's news whereby the DoJ announced its intent to block the merger between AT&T and T-mobile, Sprint made public its suit against the proposed merger (see press release).

Finnish governement will gather all electronic communications legislation in one place

"Work will begin in accordance with the Government Programme to gather legislation pertaining to electronic communications and the provision of information society services into one place.

The purpose is to eliminate overlapping and to clarify and update the content of the regulations.

"Approximately ten acts will be consolidated to form an information society code. In part, this work will consist of technical transferring of sections and subsections. However, the most important objective is to ensure functional communications markets," Krista Kiuru, Finland's Minister of Housing and Communications stated" (see press release).

10 entities applied for the 6 DTT Italian frequencies

The Italian Ministry of industry disclosed the 10 entities which applied for the 6 DTT frequencies (see press release).

Italian NCA issues opinion on draft general liberalisation Decree

The Italian NCA gave its directions regarding the draft Decree which contains general liberalisation principles.

Tuesday, 6 September 2011

Portuguese NRA issues decision on PTC's complaing regarding the methodology for calculating the net cost of universal service

"ANACOM decided for partial claim filed by PTC, therefore amending its determination of 9 June 2011, in the sense of using actual prices to determine unprofitable areas and customers in profitable areas, as well as to determine the CLSU (net costs of the universal service) in unprofitable areas and unprofitable customers, proceeding to the correctness of the methodology concerned" (see the press release).

Commission's Art. 7 Comments to the Maltese regulator on the latter's proposed modification of remedies in the mobile call termination market

The European Commission, in its decision, made the following comments to MCA, on the latter's proposed modification of remedies in the mobile call termination market:

Imposition of the price control mechanism and the need for efficient costoriented
mobile termination rates


The Commission reiterates that, although the regulatory framework does not exclude a price control mechanism based on a comparison with other countries, such a mechanism should serve to promote efficiency and sustainable competition and maximise consumer benefits. Moreover, the Commission has repeatedly expressed its view that termination rates should be set at levels corresponding to the costs of an efficient operator. In this respect the Commission notes that MCA, in its draft decision, did not further set out why the proposed benchmarking against 75% of Member States appropriately reflects the conditions prevailing in Malta. Inappropriate benchmarks that do not represent efficient cost-based estimates will imply that the competitive distortions resulting from inconsistent and above-cost termination rates persist.

The Commission welcomes MCA's commitment to develop and apply its own pure LRIC model by 2012, and comply with the Termination Rates Recommendation by that time. However, instead of benchmarking against the absolute level of 20 EU Member States, irrespective of their compliance with the Termination Rates Recommendation, the Commission invites MCA to benchmark those Member States that have introduced pure LRIC rates already or are currently working towards them. MCA could then comply with the Termination Rates Recommendation by the end of 2012, while at the same time avoiding sudden falls in MTRs in the interim or when the results of MCA's BU-LRIC model are applied.

Modification of the rate of cost of capital of PT Comunicações

After the Portuguese NRA, ANACOM, communicated the modification of the rate of cost of capital of PT Comunicações, to the European Commission (see the press release), the latter had no comments to make in its decision.

Commission's Art. 7 Comments to Belgian NRA on the lalter's modification of the incumbent's offers concerning products in markets 4 and 5

The European Commission, in its decision, had no comments to make on BIPT's minor modifications of Belgacom's reference offers concerning the WPNIA and WBA markets.

Commission's Art. 7 Comments to the French NRA on the latters review of the leased lines market in St-Barthélemy

The European Commission, had no comments to make to ARCEP concerning the latters review of the leased lines market in St-Barthélemy (see the decision).

Berec's analysis on the new Roaming Regulation

Berec's analysis on the new Roaming Regulation was presented before the European Parliament (see press release).

Monday, 5 September 2011

Court Week

Tomorrow the Opinion on the Luskan case wil be handed down ("Interpretation of Article 2(2), (5) and (6) and Article 4 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), of Articles 1(5) and 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), of Articles 2, 3 and 5(2)(b) 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 (OJ 2001 L 167, p. 10) and of Article 2(1) of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ 2006 L 372, p. 12) – Sharing of exploitation rights of a cinematographic work, by way of contract, between the author and the producer of the work – National legislation attributing all those rights to the producer").

On Thursday the Opinion on case C-81/10 P, France Télécom v Commission, will be delivered ("Appeal brought against the judgments of the Court of First Instance (Third Chamber) of 30 November 2009 in Joined Cases T427/04 and T17/05 France and France Télécom v Commission by which the Court dismissed the actions brought by the French Republic and the appellant for annulment of Commission Decision 2005/709/EC of 2 August 2004 on the State aid implemented by France (OJ 2005 L 269, p. 30) – Misapplication of the concepts of ‘State aid’ and ‘advantage’ in connection with France Télécom’s business tax regime for the period 1994 to 2002 – Breach of the principle of legitimate expectations – Limitation period for State aid – Obligation to state reasons and breach of the principle of legal certainty").

Finland and Russia sign co-ordination agreement in the 800 MHz

Finland and Russia sign co-ordination agreement in the 800 MHz (see FICORA's press release).

French NRA announces France's trasposition of the telecoms package

ARCEP stated (see press release, in french) that France has fulfilled its obligation to traspose the 2009 telecoms package.

Cyprus sets under consultation laws and regulations transposing the telecoms package

The Director of the Department of Electronic Communications, of the Ministry of Communications and Works of Cyprus, expressed its willingness to set under consultation before the Minister, the law trasposing the 2009 telecoms package and other relative regulations (see relative page, in greek).

Italian NRA's consultation on Telecom Italia's charge control in market 4

AGCOM has set under consultation TI's charges to be adopted in market 4 for 2011 (see relevant page, in italian).

Italia's LTE auction

The Italian Ministry of Indystry reports that it has received 2,3 billion euros from operators for its 800, 1800, 2000 and 2600 MHz LTE auction (see the press release, in italian and cellular-news.com).

Bulgarian NRA's consultation on LTE

"The Communications Regulation Commission by Decision No 841 of 23.08.2011 launched a public consultation procedure in connection with the perspectives for development of LTE (Long Term Evolution) in Republic of Bulgaria" (see the press release).

Bulgaria to auction additional 3g spectrum

"By Decision No 705 of 4 August 2011 the Communications Regulation Commission (CRC) announces its intention to issue authorisation for the use of individually assigned scarce resource – radio frequency spectrum for the provision of public electronic communications through terrestrial mobile network – UMTS with national coverage, using individually assigned scarce resource from the radio frequency spectrum – 2 x 15 MHz in the 2 GHz range" (see the press release and cellular-news.com).

EU to launch infringement procedure against Bulgaria on mobile prices

According to euractive.com, the Commission is ready to take action against Bulgaria over the latter's excessive mobile prices, while the country's NCA in an attempt to face the problem is set to investigate operators on possible collusive behaviour (see cellular-news.com).

Level of costs entailed in the proposed appeals schemes under the Digital Economy Act

OFCOM after DCMS' request, provided the costs entailed under the existing proposals on the appeal schemes to be established according to the Digital Economy Act, its opinion on the necessity of a subscriber fee to deter frivolous appeals, and its opinion on the way to deter frivolous appeals without the introduction of a fee (see relevant page).

OFCOM delivers final version of the charge control on BT in relation to additional Point of Handover pricing

"Ofcom has notified the European Commission, BEREC and other national regulatory authorities (NRAs) of our proposed decision on modifications to the charge control on BT in relation to additional Point of Handover (POH) charges".

OFCOM's concultation on geolocation

OFCOM's intitial consultation on geolocation as a way to exploit "white spaces" has closed. All input is accessible and further steps to meet the objective handed down (see related page).

OFCOM's draft determination on the dispute between O2 and each of Vodafone and H3G about mobile voice call termination charges in October 2010

OFCOM released in early August 2011, its draft determination (see related page) on the dispute between O2 and each of Vodafone and H3G about wholesale mobile voice call termination charges in October 2010. The NRA stated "that it was fair and reasonable in light of the prevailing regulatory regime for Vodafone and H3G to levy the October 2010 charges. Accordingly, we provisionally conclude that we do not need to go on to determine the level of charges that would have been reasonable...".

Friday, 2 September 2011

Pan-Europea ban for Samsung's Galaxy Tab lifted

The German Court decided to maintain its ban only for Germany after considering it cannot impose a ban in other countries (see cnet.com).

DoJ overlooks Nortel patents' byers

DoJ is said to be overlooking the consortium that bought Nortel's patents, comprising of Apple, EMC, Ericsson, Microsoft, Research In Motion, and Sony, since it suspects the latter will attempt to engage in litigation against Goggle alleging breach by the latter of Nortel's patents(see cnet.com).

Additional arbitration procedure offered to online video distributors under the Comcast/GE/NBCU final judgment

The US DoJ by its supplemental statement in support of the Final Judgment in Comcast/GE/NBCU, provides an additional and faster arbitration procedure to OVDs which seek content from the merged entity and which acts as a supplemental to the arbitration procedure accessible via the FCC order.

FCC to facilitate foreign ownership in wireless carriers

FCC in its NPRM, is set to facilitate foreign investement by making it easier for foreigners to hold US wireless carriers' stakes (see the press release and commlawblog.com).

FCC to adopt Wireless Backhaul Reform

FCC adopts Wireless Backhaul Reform as part of Broadband Acceleration Initiative and Spectrum and Regulatory Reform Agendas (see the NPRM and the press release), to faciliatte LTE deployment.

Thursday, 1 September 2011

900, 1800 MHz Greek spectrum auction expected in forthcoming November

The 900, 1800 MHz consultation ends on 9 September 2011 and the Greek NRA expects to have the auction in the forthcoming November (see EETT's press release, in greek).

Carlyle/Gores Broadband merger approved by the Commission

The Commission approved in phase I the Carlyle/Gores Broadband concentration.

Prior notification of DCDC Holdings/Universal/WB/DCDC Joint Venture

The European Commission received a prior notification of the DCDC Holdings/Universal/WB/DCDC Joint Venture whcih will engage in handling distribution in the US and Canada.

Information letters sent by the Commission to MS on the implementation of the AVMS Directive

The European Commission sent to Austria, Cyprus, Estonia, Germany, Hungary, Latvia, Lithuania and Luxemburg, letters requesting infromation as regards the implementation of the AVMS Directive. It shall be reminded that in March 2011, 16 Member States in total were under scrutiny, out of which Slovenia and Poland are already subject to infringement proceedings for failing to transpose the Directive (see the press release).

Blow to AT&T/T-mobile merger by the DoJ

US DoJ filed a suit against the AT&T/T-mobile merger (see the press release, Deputy Attorney General's and Assistant Attorney General's remarks).