Wednesday, 30 November 2011

Commission clears acquisition of satellite communication services company Vizada by Astrium, a subsidiary of EADS

"The European Commission has approved under the EU Merger Regulation the proposed acquisition of Mobsat Holding SàRL, the holding company of the Vizada Group of Luxembourg, by Astrium Holding SAS of France. The Commission concluded that the transaction would not raise competition problems, because it will only lead to a very limited increase in market shares and the merged entity will continue to face a sufficient number of competitors in all markets concerned.

The Commission examined the impact of the proposed transaction on the wholesale and retail markets for mobile and fixed commercial two-way satellite communication ("Comsatcom") services by land, air or sea as well as on the market for the manufacture and supply of Comsatcom equipment. Comsatcom services allow end-to-end exchanges of voice and data between several connected terminals which can be fixed or mobile.

The Commission found that the proposed transaction would only give rise to very limited horizontal overlaps and vertical links between the parties' activities in all relevant market segments and that, post transaction, the merged entity will continue to face competition from a number of players. The Commission also concluded that the combination of the activities of the EADS group, to which Atrium belongs, and Vizada will not give EADS the possibility or incentive to shut out competitors in the Comsatcom sector. The bundling of the various products of the merged entities could indeed not be implemented given the existing market dynamics.

The Commission therefore concluded that the transaction would not significantly impede effective competition in the European Economic Area (EEA1) or any substantial part of it.

Astrium provides space technologies products and services on a worldwide basis. Vizada is a worldwide provider of satellite-based mobility communication services.

The transaction was notified to the Commission on 26 October 2011
" (see Commission's full press release).

Facebook settles FTC charges

"The proposed settlement bars Facebook from making any further deceptive privacy claims, requires that the company get consumers' approval before it changes the way it shares their data, and requires that it obtain periodic assessments of its privacy practices by independent, third-party auditors for the next 20 years.

Specifically, under the proposed settlement, Facebook is:

- barred from making misrepresentations about the privacy or security of consumers' personal information;

- required to obtain consumers' affirmative express consent before enacting changes that override their privacy preferences;

- required to prevent anyone from accessing a user's material more than 30 days after the user has deleted his or her account;

- required to establish and maintain a comprehensive privacy program designed to address privacy risks associated with the development and management of new and existing products and services, and to protect the privacy and confidentiality of consumers' information; and

- required, within 180 days, and every two years after that for the next 20 years, to obtain independent, third-party audits certifying that it has a privacy program in place that meets or exceeds the requirements of the FTC order, and to ensure that the privacy of consumers' information is protected.

The proposed order also contains standard record-keeping provisions to allow the FTC to monitor compliance with its order
" (see FTC's full press release: http://www.ftc.gov/opa/2011/11/privacysettlement.shtm ).

Tuesday, 29 November 2011

European Commission submits proposed ADR Directive and Regulation on an EU-wide on line Dispute Resolution Platform

The European Commission submitted its proposed Alternative Dispute Resolution (ADR) Directive and Regulation on an EU-wide on line Dispute Resolution Platform (see the press release).

ANACOM approves final decision on the authorisation regime governing mobile satellite service in 2 GHz

ANACOM has approved the final decision on the authorisation regime governing mobile satellite service (MSS) in the 2 GHz band (see ANACOM's press release).

Portuguese Government along with ANACOM consult on designation of US provider

The Portuguese Government and the NRA consult on the process of designating the provider(s) of the universal service of electronic communications (see ANACOM's press release).

Portuguese Law transposing AVMS Directive published

Law no 8/2011 transposing the AVMS Directive has been published (see ANACOM's press release).

AG delivers Opinion in Perenicova case - unfair contract terms

Under AG Trstenjak's Opinion (in french) in the Perenicova case, and amongst other conclusions on the case, what is quite interesting is the suggestion that 1) art. 6 (1) of Direcive 93/13/EC does not provide nullity of a contract as a whole if it includes unfair contract terms and even if such a solution is more favourable to the consumer but 2) Member States are not precluded from putting in place such a legal provision, i.e. under which a contract could be nullified in its entirety if it contains unfair contract terms and such a solution is deemed to be favourable to the consumer.

AG Bot in SAS Institute case: functionalities of a computer program and the programming language are not eligible, as such, for copyright protection.

AG Bot's Opinion in the SAS institute case reads as follows:

"1) Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs is to be interpreted as meaning that the functionalities of a computer program and the programming language are not eligible, as such, for copyright protection. It will be for the national court to examine whether, in reproducing these functionalities in its computer program, the author of the program has reproduced a substantial part of the elements of the first program which are the expression of the author’s own intellectual creation.

2) Articles 1(2) and 6 of Directive 91/250 are to be interpreted as meaning that it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format, provided that that act is absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of different programs. That act must not have the effect of enabling the licensee to recopy the code of the computer program in his own program, a question which will be for the national court to determine.

3) Article 5(3) of Directive 91/250, read in conjunction with Articles 4(a) and (b) and 5(1) thereof, is to be interpreted as meaning that the expression ‘any of the acts of loading, displaying, running, transmitting or storing the computer program [which the person having the right] is entitled to do’ relates to the acts for which that person has obtained authorisation from the rightholder and to the acts of loading and running necessary in order to use the computer program in accordance with its intended purpose. Acts of observing, studying or testing the functioning of a computer program which are performed in accordance with that provision must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code.

4) Article 2(a) 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 is to be interpreted as meaning that the reproduction, in a computer program or a user manual, of certain elements described in the manual for another computer program may constitute an infringement of the copyright in the latter manual if – a question which will be for the national court to determine – the elements reproduced in this way are the expression of their author’s own intellectual creation
".

BIPT closes 4g auction

Belgium's 4g auction has been concluded with 4 bidders acquiring licenses for a total of 77,79 million € (see the NRA's press release).

Italian 23 million € broadband state aid plan for Sicily signed

The Ministry of Economic Development and the Region of Sicily signed the 23 million € broadband state aid plan which will bring faster internet to more than 83.000 people.

The Ministry and the Region of Sicily are also working on a strategic project - pending approval by the European Commission - to implement a next-generation network that will connect 190.000 housing units, main industrial areas, public offices and healthcare companies (see the Ministry's press release, in italian).

UK Government's new Cyber Security Strategy

The UK Government has published its new Cyber Security Strategy, under which it "sets out how the UK will support economic prosperity, protect national security and safeguard the public’s way of life by building a more trusted and resilient digital environment" (see full BIS press release).

Monday, 28 November 2011

Commission's Art. 7 Comments to the Slovakian NRA on the latter's review of the wholesale terminating segments of leased lines market

The European Commission, made the following comments, in its decision, to the Slovakian NRA on the latter's review of the wholesale terminating segments of leased lines market:

"Envisaged maintenance of the existing methodology for price control

The Commission notes that the TÚSR has not notified the price control remedy in Segment A together with the market analysis. However, it clarified that it intends to base the envisaged methodology on FAHC for access and develop a LRAIC model for co-location.

Without prejudice to any line taken by the Commission once these methodologies are notified, the Commission points out that in accordance with Article 16(4) of the Framework Directive, the NRAs should, following a market analysis, impose on the SMP operator appropriate specific regulatory obligations. In addition, in accordance with Article 8(4) of the Access Directive, any remedies imposed must be based on the nature of the problem identified, and must be proportionate and justified in light of the objectives laid down in Article 8 of the Framework Directive.

In this respect, the Commission notes that there is no demand for Slovak Telekom's current reference offer, which, as far as access is concerned, is already based on a FAHC methodology. Therefore, the Commission calls on the TÚSR to duly justify the use of this methodology in their final measure against the objectives of the framework as set out above.

In this context the TÚSR should further explain i) why it considers that a revised FAHC methodology can address the lack of demand for the existing reference offer, ii) why competitors find the non-regulated bundled leased line products more advantageous, iii) how the TÚSR has taken the demand for commercial leased lines products into account for the purpose of formulating the currently proposed remedies, and iv) what the implications are for the assessment of competitive constraints and the SMP finding
".

Commission's Art. 7 Comments to the German NRA on the latters withdrawal of ex ante regulation in the ip-broadband conveyance market

The European Commission had no comments to make, in its decision, to the German NRA on the latters withdrawal of ex ante regulation in the ip-broadband conveyance market after the latter failed the three-criteria test.

Italian NCA consults on TI's undertakings

The Italian Competition Authority has made public and consults on Telecom Italia's offered undertakings (see the NCA's relevant page) as regards the case against TI brought by Fastweb (see an older press release).

Greek broadband "white areas" state aid plan approved by the Commission

The European Commission, approved (the details of the decision are not yet available) Greece's Broadband State Plan of 200 million € (see Greek Digital Plan Secretary's press release, in greek), which is intended to be dispersed upon broadband deployment in rural "white" areas (where no operator intends to deploy its network).

Friday, 25 November 2011

Greek Competition Authority revises leniency programme

The Greek NCA issued its revised leniency programme in an attempt to aligh with EU standards (see the also the press release, in greek).

OFCOM’s note on its approach to net neutrality

UK's telecoms watchdog has issued a note as regards its approach to the issue of net neutrality. It states explicitly:

" - We recognise the benefits associated with 'best-efforts' internet access and the provision of managed services, and seek for them to co-exist.
- We would be concerned if network operators were to prioritise managed services in a manner that leaves insufficient network capacity for 'best-efforts' access to the open internet. In such circumstances we would consider using the powers which allow us to safeguard 'best-efforts' access to the open internet by imposing a minimum quality of service on all communications providers.
- We regard any blocking of alternative services by providers of internet access as highly undesirable. Where providers of internet access apply traffic management in a discriminatory manner, our view is that this could have a similar impact to outright blocking. Our current view is that we should be able to rely on the operation of market forces to address the issues of blocking and discrimination, but we will keep this position under review.
- Effective competition requires that sufficient information is available to enable consumers to make good purchasing decisions. This document sets out our current view as to what we believe to be necessary, both in terms of technical information on traffic management practices, and transparency as to services which are blocked or discriminated against
" (see the whole note).

AGCOM approves Installation, Co-location and Sharing of Infrastrucure Regulation

The Italian NRA has adopted its Regulation on rights of installation, co-location and infrastrucure sharing, reducing in that way civil works costs and facilitating ngn deployment (see the press release).

AGCOM approves TI's RO on call origination & termination and transit services

AGCOM approved (in italian) Telecom Italia's Reference Offer on call origination & termination and transit services.

ANACOM issues Regulation on the methodology of monitoring and measuring the intensity levels of electromagnetic fields

ANACOM issued its final decision on the Regulation on the methodology of monitoring and measuring the intensity levels of electromagnetic fields (see the press release).

Irish final Spectrum Management Strategy Plan for 2011 - 2013

ComReg has made public its final Spectrum Management Strategy Plan for 2011 - 2013.

Maltese NRA issues final decision on fixed transit services market review

MCA has made public its final decision on its review of the fixed trasit services market.

Secrecy of Electronic Communications Regulation of the Greek Communication Security Authority published in the National Gazette

The Secrecy of Electronic Communications Regulation of the Hellenic Authority for Communication Security & Privacy has been published in the National Gazette (in greek).

Thursday, 24 November 2011

Polish mobile operators fined by NCA for forming a cartel, affecting the mobile TV market

"The President of UOKiK decided that Polkomtel, Polska Telefonia Cyfrowa, PTK Centertel and P4 concluded an unlawful and competition-restricting agreement. The operators agreed on their conduct towards the wholesale operator of mobile television. Unlawful practices caused a delay in the development of new services on Polish market. The Office ordered to discontinue the practice and imposed on all cartel participants fines exceeding PLN 113 mln" (see the full press release).

ROs sent to 16 Member States for not implementing fully the 2009 telecoms package

"The European Commission has written to sixteen Member States which have failed to fully implement new EU telecoms rules into national law, six months after the deadline to do so (25 May 2011). Partial implementation of the EU Telecoms rules limit consumers' rights in these 16 Member States. The new rules give EU customers new rights regarding fixed telephony, mobile services and Internet access. For instance, the right to switch telecoms operators in one day without changing their phone number and the right to clarity about data traffic management practices employed by Internet Service Providers. There is now also better protection of privacy and personal data online.

The Commission's requests today take the form of "reasoned opinions." Member States which do not fully implement the new laws risk referral to the EU's Court of Justice and potential financial penalties. The 16 Member States are: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, France, Germany, Greece, Hungary, Italy, The Netherlands, Poland, Portugal, Romania, Slovenia and Spain
" (see the full press release).

UK Competition Commission issues draft alternative remedies in its inquiry in the PayTV market

The Competition Commission issued its proposed alternative remedies that could be imposed on BSkyB as regards its activity in the PayTV market and launched a consultation. The remedies determined are first, that of "requiring Sky to provide, to any qualifying over-the-top (OTT) movie service provider, access to its consumers who are currently able to receive its Anytime+ SVOD content (ie those consumers with a Sky Ethernet enabled set-top box (STB))". The second remedy acts as "a supplementary remedy, requiring Sky to publish the expiry dates of its contracts relating to FSPTW rights with the six major studios, so as to increase the ability for rival bidders to engage in timely negotiations" (see the press release).

CAT permits appeal on BT's termination charges and Telefonica appeals Vodafone/H3G termination charges

CAT permitted Telefonica's, Vodafone's and H3G's appeal on BT's termination charges case "on the sole issue of the approach taken by the Tribunal in weighing the factors that it found to be relevant so as to conclude that the NCCNs were fair and reasonable" (see CAT's page: http://www.catribunal.org.uk/238-7367/Ruling-Permission-to-appeal.html).

Telefonica submitted its appeal of OFCOM's determination on Vodafone/H3G termination charges (see CAT's page: http://www.catribunal.org.uk/237-7370/1189-3-3-11-Telefnica-UK-Limited.html).

CJEU decides on ASNEF case regarding art. 7(f) of the Data Protection Directive

The case involved around a Spanish legal provisions increasing the difficulty for processing personal data. The provision made explicit, in particular, the sources from which and only could data controllers or third parties take the data for process if of course they had already passed the Directive's first test - data controllers' or third parties' existance of legitimate interest-, and the second one, that fundamental rights and freedoms are not prejudiced.

The Court ruled that "Art 7(f) of the Directive has direct effect and that "Article 7(f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as precluding national rules which, in the absence of the data subject’s consent, and in order to allow such processing of that data subject’s personal data as is necessary to pursue a legitimate interest of the data controller or of the third party or parties to whom those data are disclosed, require not only that the fundamental rights and freedoms of the data subject be respected, but also that the data should appear in public sources, thereby excluding, in a categorical and generalised way, any processing of data not appearing in such sources".

CJEU delivers decision in Spanish TVWF Directive - Ads Infringement case

The Court in its decision in the Spanish TVWF Directive - Ads Infringement case, "Declares that, by tolerating a situation in which the broadcasting of certain types of advertising, such as advertorials, telepromotion spots, sponsorship credits and micro-ads, on Spanish television channels has a duration which exceeds the maximum limit of 20% of the transmission time within a clock hour, as laid down in Article 18(2) 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 the Council of 30 June 1997, the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) of that directive;".

Court blasts (well not entirely...) Copyright Holders in Scarlet Extended

The CJEU delivered its judgment in the Scarlet Extended case, concerning preventive filtering of consumers by ISPs to detect copyrigt infringement. The judgment reads as "Directives:

– 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’);

– 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;

– 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ;

– 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and

– 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),

read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright
".

Commission clears Western Digital's acquisition of Hitachi's hard disk drive business subject to conditions

"The European Commission has approved under the EU Merger Regulation the proposed acquisition of Hitachi Global Storage Technology (HGST), a subsidiary of Hitachi of Singapore recently renamed Viviti Technologies, by rival Western Digital of the US. The approval is conditional upon the divestment of essential production assets for 3.5-inch hard disk drives (HDD), including a production plant, and accompanying measures. Western Digital cannot complete the acquisition of Viviti until it has found a suitable purchaser that is approved by the Commission" (see the full press release).

European Commission: no Universal Service on mobile or broadband necessary

"The European Commission ... announced there is currently no need to change the basic concept, principles or scope of EU rules on Universal Service to include mobile telecommunications services and broadband connections at EU level. The Commission has come to this conclusion on the basis of a public consultation and its third periodic review of the scope of this service.

The Commission has also concluded that it would not be appropriate, at this stage, to set at EU level a single broadband connection speed under the universal service rules, given the very different stages of development of telecoms networks in the Member States and the potential costs involved. In particular, the burden on industry and the impact on consumer prices would be greatest in Member States with currently low broadband coverage and income levels. However, Member States retain the flexibility to include broadband connections in their national USO in justified cases. This will usually be when broadband take-up is already sufficiently high. To date, Finland, Malta and Spain provide for a minimum broadband speed in national law
" (see the full press release and the communication).

German NRA issues calls to determine post-2016 shortage of frequencies in 900/1800 MHz bands

"Bundesnetzagentur has issued a call for notification of post-2016 requirements of frequencies in the 900 MHz and 1800 MHz bands, with a view to determining whether there is a shortage of frequencies in these two bands and, if so, how serious the shortage is. Notifications can be submitted by 16 January 2012" (see the full press release).

BIPT's draft decision on Belgacom's alternative offer to its mutlicast functionality access obligation

The Belgian regulator has issued its draft decision (in french) and launched a consultation as regards the incumbent's alternative offer to its multicast functionality access obligation. In its draft decision, the NRA states its intent to approve Belgacom's alternative offer which consists of access to the platform as an alternative to IPTV multicast, given that the incumbent will prepare this alternative as a stand alone access product that will be included in the reference offer and as long as interoperability and access to the software employed in the product is given.

Belgian NRA issues opinion on the net neutrality draft law

BIPT issued its opinion (in french) as regards the draft law which aims to establish net neutrality in Belgium. However, the Auhtority, is quite reluctant and due to the modest approach adopted in most copuntries and in the 2009 telecoms package itself, advises that the country should stick to the trasposition of the telecoms package which brings new powers as regards transparency and QoS and engage in a review of the net neutrality issue at a later stage when experience on the matter will be greater.

French NRA consults on rate of return on capital and FT's depreciation periods of active local loop

ARCEP launched two consultations in relation to cost orientation. The first one (in french) focuses on the setting of the rate of return on capital for fixed and mobile activities. The second consultation (in french) regards the determination of the time periods for the depreciation of France Telecom's active local loop.

ARCEP consults on Universal Service of 2010 net cost

The French regulator launched its consultation (in french) to determine the net cost for the universal service activity in 2010. The consultation will last up until 15 December 2011.

Tuesday, 22 November 2011

Amendment to Portuguese legal provisions on administrative fees and spectrum tariff

"Administrative Rule number 291-A/2011, of 4 November, which introduces the 3rd amendment to Administrative Rule number 1473-B/2008, of 17 December, which approves the fees due for the issue of statements supporting rights, the provision of electronic communications networks and services, the allocation of rights of use for frequencies and numbers, the use of radio spectrum, and other fees due to ANACOM" (see ANACOM's press release).

Danish NRA consults on 800 MHz auction

The Danish NRA consults on its 800Mhz auction. For the page with the list of the relevant documents click here.

FCC releases USF Reform and Intercarrier Compensation Reform Order

The Federal Agency released the USF (Universal Service Fund) Reform and Intercarrier Compensation Reform Order.

Monday, 21 November 2011

Malta abstains from regulating international transit services market under MCA's latest market review

The European Commission, had no comments to make, in its Art. 7 decision, to MCA on the latter's decision to exclude the international transit services market from ex ante regulation for failing to meet the three criteria test.

Commission stalls UKE's proposed MTRs for Polish operator Aero2

The European Commission, decided for the second time to use its powers under new Art. 7a, in, the relative to the first case, situation by which MTRs are set without proper prior market analysis. As the Commission puts it, "the European Commission has halted plans by Polish telecoms regulator (UKE) to set mobile termination rates for AERO2, a Polish mobile operator, without conducting a market analysis first. UKE's proposal would set rates at more than double the prices offered by AERO2's four main competitors, without justifying why such rates are needed. The arbitrary nature of this proposal therefore violates a key EU regulatory principle" (see the Commission's full press release).

Check also the decision (https://circabc.europa.eu/d/d/workspace/SpacesStore/09dd5560-355e-4f66-a764-470c2e8a9d3f/PL-2011-1260%20Acte%284%29_EN%2bdate%2bnr.pdf).

Friday, 18 November 2011

Polish Broadband State Aid project gets green light from the Commission

The Polish regulator, UKE, reports that the European Commission gave the green light to a Polish Braodband State Aid project covering 5 provinces in Eastern poland (see UKE's press release).

Commission launches consultation on technical harmonisation conditions in the terrestrial 2 GHz band

"The terrestrial 2 GHz band has been identified in the context of the EU's Wireless Access Policy for Electronic Communications Services (WAPECS) as a band for the provision of electronic communications services, in particular wireless broadband, on the basis of flexible choice of technology and services.

...

Within the EU, rights of use have already been awarded within the terrestrial 2 GHz band and the technology in use today is restricted to UMTS for the paired sub-bands (1920-1980 MHz and 2110-2170 MHz), based on Frequency Division Duplex (FDD).
However, a substantial portion of this band, namely the unpaired sub-bands 1900-1920 MHz and 2010-2025 MHz based on Time Division Duplex (TDD) remains largely unused even though rights of use have been granted in some Member States for many years.

The rapid advance of wireless technology and growth of demand for wireless services on the one side, and the lack of utilisation of the unpaired (TDD) sub-bands, on the other, make it necessary for steps to be taken to make the terrestrial 2 GHz band available for a wider range of services and thus maximise its economic and social benefit.

Therefore, the Commission envisages the introduction of harmonised technical conditions at EU level for the terrestrial 2 GHz in the form of a Commission Implementing Decision
" (see the Commission's relevant page: http://ec.europa.eu/information_society/policy/ecomm/radio_spectrum/activities/index_en.htm#ongoing_consultations).

International Roaming BEREC Benchmark Data Report

Berec's International Roaming Benchmark Data Report is out.

AGCOM adopts MTRs glidepath

The Italian regulator announced its Mobile Termination Rates glidepath.

"Glide path per operatore (centesimi di euro)
Operatore 1/7/2012 1/1/2013 1/7/2013
H3G.............3,50.....1,70.....0,98
Telecom........2,50.....1,50.....0,98
Italia
Vodafone.......2,50.....1,50.....0,98
Wind............2,50.....1,50.....0,98
" (see AGCOM's full press release).

EP endorses net neutrality

The European Parliament adopted its Resolution on Net Neutrality and the Open Internet (see laquadrature.net).

Thursday, 17 November 2011

Draft Portuguese competition law under consultation

The new draft Portuguese competition law will be in consultation till 5 December 2011.

The proposed law's objectives are:

- "simplification of the law, separating regulations governing the application of competition rules from regulation governing criminal procedures, making the competition regime more efficient;

- rationalising the conditions which determine the opening of investigations, enabling Autoridade da Concorrência (the Portuguese Competition Authority) to make assessments on the relevance of the complaints which it receives;

- establishment of procedures which will bring Portuguese competition law, in terms of controlling concentration operations between companies, closer into line with Regulation of Concentrations in the European Union especially regarding the criteria whereby it becomes mandatory to give notification of a concentration operation on an ex ante basis;

- guarantee of greater clarity and legal certainty in the application of the Código de Procedimento Administrativo (Administrative Proceeding Code) to the procedures overseeing concentration operations between companies;

- examination of the current appeal process and consequent adjustment, were necessary, to enhance fairness and efficiency in terms of procedural safeguards and improvements thereto
" (see ANACOM's full press release
).

Wednesday, 16 November 2011

Moldova's regulator issues draft obligations to be imposed on JSC Moldtelecom in leased lines terminal and trunk segments markets

ANRCETI has made public the draft obligations to be imposed on JSC Moldtelecom in the leased lines terminal segments (market 6) and trunk segments (market 8) markets.

The proposed obligations are: "1) offer leased line terminal segments, in the case of market 6 and, accordingly, leased line trunk segments in the case of market 8, to all requesting providers, under terms and conditions as specified in the decisions; 2) ensure transparency, including availability of leased lines RIO for the public 3) admit of no discrimination of providers requesting provision of leased line terminal segments and leased line trunk segments, collocation and other associated services; 4) orientation of prices for the provision of terminal segments and leased line trunk segments, as well as collocation and other associated services to the long run average incremental cost (LRAIC); 5) separate accounting" (see the full press release).

ARCEP endorses France Telecom/SFR agreement on joint fibre roll-outs outside high-density areas

The French regulator welcomed the agreement between the two operators.

"This rollout programme concerns 11 million households located in some 3,500 municipalities spread out across the whole of France.

Rollout operations will begin in all of these municipalities between 2012 and 2015, and will be completed by 2020 at the latest - at which point, if we include rollouts in very high-density areas, around 17 million households (or 60% of all French households) will be eligible to subscribe to a fibre-based access solution
" (see ARCEP's press release).

Tuesday, 15 November 2011

OFT consults on its 2012-13 Annual Plan

"During 2012/13 the OFT plans to focus on its work on:

- Market problems affecting vulnerable consumers, working closely with local authority Trading Standards Services and consumer groups.

- Tackling businesses that are creating unnecessarily complex pricing structures or reducing the clarity of their product offering.

- Improving trust in online markets, including action that promotes awareness of consumers' rights, shapes emerging online business models, or reinforces the integrity of online tools aimed at helping consumers evaluate choices.

- High innovation markets and business models, and the intersection of consumer and competition policy with intellectual property rights.

- Public services markets, providing constructive advice to the Government where these are opened up, to help frame and deliver markets that work well for users and taxpayers
" (see the full press release in oft.gov.uk).

Monday, 14 November 2011

Greek spectrum auction closed

The Greek 900, 1800 MHz spectrum auction is closed bringing approximately 380 million € to the State. Cosmote got 4 blocks in 900 and 2 blocks in 1800, Vodafone, got 6 blocks in 900 and 2 block in 1800 and Wind got 4 blocks in 900 (see EETT's relevant page).

OFCOM issues Dispute Consultation in MPF charges case

"This dispute concerns the charge set by Openreach (a BT Group business) for its local loop unbundling (LLU) wholesale product for MPF rental. 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. Since 1 April 2011, in the absence of a charge control BT has charged 91.50 for MPF annual rental. TTG contends that based on proposals set out in the Consultation, this charge is too high". OFCOM on the other hand in its dispute consultation contends that the price proposed by BT is "compliant with the relevant regulatory obligations" (see OFCOM's relevant page).

Friday, 11 November 2011

Romanian regulator launches consultation on its 2012 Action Plan

"2012 will be an important year in the frequency spectrum field as ANCOM plans to hold the procedure for the allocation of the 800 MHz and 2600 MHz frequency bands, to elaborate the strategy on the use of the frequency bands above 40 GHz allotted to the fixed service and to update the National Table for Frequency Allocation (NTFA). Furthermore, ANCOM intends to amend the specific secondary legislation in the radio spectrum field, by reviewing the procedure for the request and award of the licences for the use of radio frequencies.

One of the most important projects aimed at fostering competition in the electronic communications sector to be started by ANCOM in 2012 concerns the modelling of efficient costs for a number of regulated services, including fixed and mobile call termination.

Upon the transposition of the new European framework for electronic communications, ANCOM is to establish the conditions and procedure for the reporting by the providers of electronic communications networks and services of security-related incidents, as well as the minimum security measures which need to be implemented by these providers. Moreover, the Authority plans to elaborate a guide for the electronic communications providers meant to offer them support in the implementation of the provisions of the new legal framework in telecom...
" (see ANCOM's full press release).

New Mobile Portability Regime in effect in France

Since 7 November 2011, the new mobile portability regime entered in effect in metropolitan France under which portability should be completed within 3 working days instead of 10 calendar days (see ARCEP's press release).

Greek Government freezes FTTH plan according to media sources

The FTTH plan was an abstract plan, the specifications of which would be determined by the technical and economic advisor which was appointed in June 2011. Since then, amongst other, the advisor had set up dicussions with stakeholders. The contest on the other hand for the legal advisor was not completed since all entries were deemed inadmissible but the Ministry has not set another date for the contest. Media sources (see Mandraveli's article in Kathimerini) however, state that the Greek Government will freeze the FTTH plan owing to the current crisis and that it moreover intends to put pressure on to the Greek NRA to relax its terms imposed upon the incumbent's NGA product, since OTE's vdsl network to be deployed is envisaged as the only fibre infrastrucure to be deployed in the immediate future.

Wednesday, 9 November 2011

Commission clears Latvian NGA state aid sheme

The European Commission, has cleared Latvia's state aid scheme aiming to finance the roll-out of fibre networks "in areas in which no commercial NGA network rollout is foreseen in the near future, to avoid the crowding out of private investments" (see the press release).

NCAs and the Commission came up with best practices on cross-border merger review

Following the Commission's consultation on the subject, the latter with the National Competition Authorities have agreed on a set of best practices to handle cross-border merger review that do not benefit from the one-stop shop review, leading to the review of a merger by several NCAs (see the press release).

OFCOM consults on cost-orientation and financial reporting

UK's regulator launched a consultation seeking input for its new guidelines on cost-orientation and regulatory financial reporting (see OFCOM's relevant page).

Monday, 7 November 2011

Greek NRA consults on installation and operation of xDSL equipment

EETT, launched its consultation as regards the installation and operation of xDSL equipment in the public network to ensure a level playing field for all operators (see the press release and the consultation in greek).

Commission activates Article 7a against Polish MTRs

"The European Commission has written to the Polish telecoms regulator, UKE, to express its serious doubts about the compatibility with EU law of UKE's proposed regulation of mobile termination rates (MTRs). This is the first time the Commission decided to use its new powers under Article 7a of the Telecoms Framework Directive (see MEMO11/321) to scrutinise remedies proposed by national regulators" (see the press release).

For the Commission's decision click here.

Friday, 4 November 2011

Only IP interconnection in the italian telecoms market from 1/1/2013

AGCOM has announced its decision under which, interconnection will migrate solely to an IP mode from 1/1/2013.

Responses to the Commission's consultation on the review of the state aid broadband guidelines

The responses to the European Commission's consultation on its anticipated review of the state aid broadband guidelines are accessible via the Commission's relevant page.

Thursday, 3 November 2011

Irish NRA consults on the future of the 2,6 GHz band

ComReg "gives notice of its intention to amend the licence conditions of the three Microwave Multipoint Distribution Systems (“MMDS”) licences in the 2.6 GHz band in force in Dublin, Galway and Waterford so that they terminate in April 2014. ComReg seeks respondents’ views on this proposal. Secondly ComReg invites respondents to comment on a report on the technical feasibility of the 2.6 GHz band being shared by MMDS and Next Generation Mobile Broadband (“NGMB”) systems" (see the press release along with the consultant's report).

Irish NRA consults on a sharing mechanism for the USO fund

ComReg has launched a consultation seeking "further views of stakeholders on a range of issues related to the development of an appropriate sharing mechanism of a positive net cost (if determined by ComReg to be an unfair burden)" (see the press release).

Romanian NRA concludes 3rd review of fixed and mobile call termination

ANCOM has concluded its 3rd review of the markets of fixed and mobile call termination and will consult now with the Commission under the Art. 7 procedure.

"From 1 January 2012, the maximum rate for call termination services provided on the mobile telephone networks will be 4.05 eurocents per minute. Moreover, as of 1 September 2012, the mobile call termination rates will further decrease to 3.07 eurocents/minute."

"The maximum interconnection tariffs in view of call termination charged by the 52 fixed telephony operators identified as having significant market power will initially decrease by15%, from 0.97 eurocents/minute to 0.82 eurocents/minute as of 1 January 2012, and by another 18%, down to 0.67 eurocents/minute as of 1 July 2012. Thus, by mid-2012, there will be a decrease by approx. 31% of the current fixed call termination rates. The rates will no longer be differentiated by times of day."

"The rates proposed today by ANCOM have been benchmarked against termination rates in other European countries, set based on the avoidable long-run incremental costs (LRIC), associated to the provision of termination services. The development of similar models for modelling the costs of Romanian operators has already been begun by ANCOM and most probably is to be completed by the end of 2012, when ANCOM will be able to impose new cuts of the termination rates." (see the press release).

Finnish NRA asks for more details on speed in consumer contracts

FICORA has asked for data transmission speeds be included in consumer contracts in more detail (see the press release).

Portuguese regulator consults on Portability regulation

ANACOM announced its consultation on its review of the Portability Regulation.

ANACOM consults on contract termination

The Portuguese NRA launched a consultation as regards contract termination in order to facilitate consumers with a simpler process (see the press release).

Poland and Ukraine sign co-ordination agreement in 800 MHz

Poland and Ukraine sign co-ordination agreement in 800 MHz (see UKE's press release).

UK PRS Regulator works with PRS Industry, the Police and IFPI to combat infringing sites

In a press release, phonepayplus, announced it is co-operating with Premium Rate Services industry, City of London Police, and the International Federation of the Phonographic Industry to combat copyright infringing web-sites (see also out-law.com).

Finnish ISPs ordered by Court to block Pirate Bay

"The Helsinki District Court ruled on 26 October 2011 that the large Finnish ISP Elisa must block access to The Pirate Bay from its network, or face a 100 000 Euros fine. The block must take effect by 18 November 2011" (see www.edri.org).

Wednesday, 2 November 2011

RSPP close to completion

The Radio Spectrum Policy Programme awaits its completion in the Parliament's Plenary in the first quarter of 2012 (see the Council's press release).

Greek Casinos and RGA file complaint against new Greek Gambling Law

Six Greek Casinos have purportedly (see imerisia.gr, in greek) filed a complaint before the competent authorities of the European Commission against the Greek State and specifically that part of Law 4002/2011 which regulates some issues on Gambling (on line gambling licenses, off line machines and other). The Casinos allege that the new Law, infringes EU Law in various respects (freedom of establishment, freedom to provide services, art 102 and state aid).

The Remote Gambling Association on the other hand, has filed before the Commission a complaint alleging mainly that the new Law constitutes state aid to the extent that it preserves beneficial tax treatment of the national incumbent, OPAP (see the press release).

Greek Consumer Protection Authority issues Recommendation as regards fixed charges on debtors

The Greek Consumers' Counsel has issued a Recommendation under which, providers are advised to reduce by 50% the fixed charges charged to their debtors when the latter have been disconnected from their service(see the Recommendation in greek).

Tuesday, 1 November 2011

Three Greek state aid projects on broadband network deployment released

The Greek Secretary of Digital Plan has released three state aid projets to boost broadband networks and related infrastrucure deployment. The first project of 7 million € concerns the completion of the previous work done on MANs. The second one, Sizefxis, of 135 million €, concerns the upgrade of the state's network and finally the third project, of 201,5 million €, concerns the deployment of broadband networks in rural areas.

Commission's Art. 7 Comments to German NRA on the latter's approval of rates for collocation at street cabinets, access to cable ducts, and dark fibre

The European Commission, made the following comments, in its decision, to BNetzA, as regards the latter's approval of rates for collocation at street cabinets, access to cable ducts, and dark fibre:

"Use of current costs for setting the access prices to non-replicable assets

The Commission refers to the comment expressed in response to the recent notification from BNetzA, concerning the price setting for LLU (DE/2011/1218). The Commission reminds BNetzA that due to the choice of current costs for the valuation of assets such as ducts, the wholesale input costs may be higher than could be expected with an approach based on actual costs or a mixed approach. Given the importance of regulating key wholesale access products in the transition period to NGA networks in an effective and consistent manner across the EU the Commission is currently undertaking a public consultation on costing methodologies for such products, including ducts. In the light of this, the Commission invites BNetzA to review its analysis upon entry into force of any relevant recommendations.

Potential margin squeeze

BNetzA concludes that there is a sufficient margin for access seekers to compete at the retail level. This conclusion is based on the calculations relevant for a premium bundled product. The Commission would like to encourage BNetzA to monitor the development of the market and to ensure that there is a sufficient margin to compete for all access seekers, and not only for those who bundle beyond a basic product.

Furthermore, the Commission points out the need for appropriate consideration of DT's promotional offers at the retail level in the margin squeeze calculations. In case of long-lasting and/or overlapping promotions, it is more appropriate to base the margin squeeze calculations on the promotional prices only. In case of short term promotions, their effect should be taken into account, for example by averaging the promotional and standard prices.

In light of the above the Commission invites BNetzA to set out in its final measure how it intends to safeguard effective competition in the overall retail market by ensuring that access seekers can expect to make a sufficient margin where they wish to compete only on a lower revenue segment of the market".

Commission's Art. 7 Comments to ComReg on the latter's model and margin squeeze test in PPCs

The European Commission had no comments to make, in its decision, to the Irish NRA on the latter's model and margin squeeze test to be imposed in PPCs. The notified measure as it stands:

"With regard to the ‘modern technology’ leased lines (Private Partial Circuits (‘PPCs’) and next generation network (NGN) Ethernet based terminating segments of leased lines), ComReg considers that a bottom-up long-run average incremental costs plus model (‘BU LRAIC plus’) is the most appropriate model to determine the costs and maximum charges by Eircom. Such charges will reflect prices in a competitive market and will send the right ‘build or buy’ signals to new entrants. The costing methodology includes all of the average efficiently incurred variable and fixed costs, plus an appropriate part of joint and common costs.

With regard to the legacy infrastructure (low speed, analogue wholesale leased lines ‘WLLs’) ComReg considers that it would not be appropriate and proportionate to base the charges on the BU LRAIC model. The demand for legacy infrastructure WLLs is rapidly declining, and currently they represent only approximately 1500 lines. ComReg considers it appropriate to maintain the currently existing maximum prices for WLLs, based on retail minus regulation. However ComReg considers it also appropriate to allow Eircom some flexibility to set lower prices, maintaining an appropriate economic space (margin) between WLLs and PPCs. The floor price for WLLs should be calculated on the basis of wholesale inputs based on the results of the model for PPCs and NGN Ethernet (BU LRAIC) and similarly efficient operators’ costs. The margin squeeze test should ensure consistent pricing between various alternative wholesale access products".

German NCA expresses concerns over Kabel's acquisition by Liberty

According to the Bundeskartellamt "Liberty is already active in Germany via its subsidiary Unitymedia (cable networks in North Rhine-Westphalia and Hesse). After conducting a preliminary assessment, the Bundeskartellamt is of the view that the acquisition of Kabel BW would strengthen a dominant oligopoly on the nationwide licensing market. This market involves the transmission of TV signals to residential premises with multiple housing units, in particular housing associations, via a broadband cable network" (see the Authority's press release).