Friday, 30 March 2012

General Court's ruling in Telefonica case

The Commission in its press release mentions (see decision in cases T-398/07, Spain v Commission and in T-336/07, Telefónica and Telefónica de España v Commission, in french):

"Telefónica sought to annul the decision or in the alternative to annul or reduce the fine. It claimed inter alia that its rights of defence had been infringed and that the Commission committed a number of manifest errors of assessment concerning in particular market definition and dominance, the application of Article 102 TFEU in relation to the conduct at hand and the impact of that conduct on competition

The Spanish State sought to annul the decision alleging in particular that the Commission had violated its duty to cooperate with the Spanish telecommunications regulator and that the Commission acted ultra vires in applying Article 102 TFEU, thereby upsetting the balance between ex ante regulation and competition enforcement. It also claimed that the Commission breached the principle of legal certainty and of legitimate expectations.

Today's judgements confirm that Telefónica was dominant on the wholesale markets in relation to which a margin squeeze was established. Importantly, the Court rejects Telefónica's argument that the Commission should have carried out a margin squeeze test based on an optimal mix of available wholesale products. The Court notes that such an approach would have amounted to holding that an alternative operator could compensate for the losses incurred because of the margin squeeze by the income resulting from the use, in certain more profitable geographical zones, of the unbundling of the local loop, which was not subject to a margin squeeze. The Court also confirms that the conduct of Telefónica was likely to reinforce the barriers for entry or expansion of competitors in the retail broadband market.

As regards the role of ex ante regulation, the Court confirms the position taken in the Deutsche Telekom judgment (case C-280/08 P of 14 October 2010) that national legislation concerning telecommunications – in this case, compliance with the decisions taken by the national telecom regulator CMT on the basis of the regulatory framework – does not release dominant firms from their obligation to respect EU competition law. In any event, Telefónica had sufficient discretion to determine its pricing policy. Importantly, the Court confirms that Telefónica must have known that the regulator never examined the existence of a margin squeeze in relation to the regulated regional wholesale access product on the basis of the actual costs of the undertaking, but rather on the basis of estimates which had not in actual fact been confirmed by the developments of the market
".

Bundeskartellamt issues guidance on substantive merger control

"...the Bundeskartellamt has published a new guidance document which describes the concept it applies in examining corporate mergers.

...

In contrast to the previous "Principles of Interpretation of Market Dominance", the new document places greater emphasis on the necessary appraisal of all relevant conditions in the market. It does not employ a checklist approach. Instead, the focus of examination is to determine how the merger will change market conditions and whether this will be harmful to competition. The guidance document also explains in detail the economic concepts underlying the theories of competitive harm.

The bill introducing the 8th Amendment of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) which was passed by the German government this week provides for the prohibition criterion in German merger control to be aligned with the European merger control regime. This means that the SIEC test ("significant impediment to effective competition") will replace the dominance test in German merger control. However, whether a merger creates or strengthens a dominant position will still be maintained as the key standard example of a significant impediment to effective competition. The guidance document will thus remain significant after the introduction of the SIEC test
" (see the full press release).

Commission makes public its antitrust manual of procedures

DG COMP, makes public its antitrust manual of procedures.

Thursday, 29 March 2012

Greek NRA issues final decision on its Regulation of Spectrum Management and Power Infusion at the Access Network

EETT has issued its Regulation of Spectrum Management and Power Infusion at the Access Network, in greek (see press release, in greek).

Law Commission issues Report on Consumer Redress for Misleading and Aggressive Practices

The Law Commission and the Scottish Law Commission have issued "a report which recommends limited reform, targeting the most serious causes of consumer detriment".

They have set "recommendations on liability and remedies. Consumers would have the right to unwind the transaction (get a refund), or receive a discount on the price. Additional damages may be recoverable to compensate for additional loss" (see the related page).

OFCOM consults on strategy for UHF bands IV and V

OFCOM launched its consultation on its strategy for UHF bands IV and V.

"1.6 In this consultation we set out a proposed strategic approach for this spectrum capable of achieving positive outcomes over the long term. These are:

Sustaining the delivery of DTT and other services which make shared use of its spectrum; and
Enabling the future release of potentially valuable harmonised mobile broadband spectrum in the 700 MHz band to meet the growth in demand for mobile data capacity.

1.7 We consider that this strategic approach is a crucial step towards ensuring the best possible use for these important bands over the long term. However, it is important to recognise that decisions on the most appropriate processes and timescales for any future change of use in the 700 MHz band need to be taken closer to the time of implementation and will need to be informed by more detailed work.
" (see OFCOM's related page).

Art. 29 Data Protection Working Party adopts Opinion on data protection reform and facial recognition in online and mobile services

Art. 29 Data Protection Working Party has released its Opinion on data protection reform proposals and facial recognition in online and mobile services.

Wednesday, 28 March 2012

Disputes before OFCOM related to BT’s charges for Ethernet services

"Ofcom has today published an updated, non-confidential version of its provisional determination..." (see OFCOM's related page here and here).

Commission clearsToshiba's acquisition of certain hard disk drive assets from Western Digital

"The European Commission has granted clearance under the EU Merger Regulation to Toshiba's acquisition of certain tangible and intangible assets for the production of 3.5" hard disk drives (collectively, the "Divestment Business") from Western Digital. Toshiba develops, produces and sells a wide range of products and services on a global basis in digital products, electronic devices, social infrastructure and home appliances. The Divestment Business consists of assets allowing the production of 3.5" hard disk drives for desktop, consumer electronics and business critical end uses. Today's decision follows the Commission's decision of 23 November 2011 conditionally clearing Western Digital's acquisition of Hitachi's storage business subject to the divestment by Western Digital of production assets and related rights for the manufacture of 3.5" hard disk drives. Western Digital proposed Toshiba as the purchaser of the Divestment Business, which was approved by the Commission on 1 March 2012. The operation was examined under the simplified merger review procedure" (see the Commission's Midday Express of 2012-03-28).

Swiss Federal Council announces intention to revise Telecoms Act

The Swiss Federal Council has announced its intention to launch a consultation on the proposed revision of the Swiss Telecoms Act.

Renotified acquisition of TPS by Vivendi Universal and Canal Plus enters Phase II

The French NCA has announced (in french) that the renotified acquisition of TPS by Vivendi Universal and Canal Plus was decided to pass to Phase II. Commitments offered will be most likely thoroughly examined within Phase II even though Phase I is thereby extended for another 15 days.

OFT launches consultation on Competition Act procedures guidance

"The OFT today launched its consultation on proposals to strengthen its Competition Act (CA98) decision-making processes, through introducing a new system of decision-makers who are separate from investigation teams.

The OFT is also extending the trial of its Procedural Adjudicator role for a further year, to 21 March 2013, with an expanded remit.

To improve the speed and robustness of investigations, as well as increase engagement with the parties involved, the OFT is making further enhancements to its processes for handling CA98 investigations including:

- More interactive oral hearings, to provide greater opportunity for dialogue between parties to an investigation and the decision-makers on the case.

- More 'state of play' meetings, to update parties on the OFT's progress in an investigation and provide a forum for parties to make their points of view known during the investigation.

- A new ability for parties to make representations on key elements of draft penalty calculations, giving parties an opportunity to comment ahead of the final decision being taken.

- New arrangements for internal checks and balances within the OFT, involving scrutiny by lawyers and economists who are not part of the investigation team.

- Publishing case opening notices and case-specific administrative timetables on the OFT website to improve transparency of ongoing CA98 investigations.

The extension of the Procedural Adjudicator trial for a further year will expand the role, including responsibility for chairing oral hearings in CA98 cases and reporting to the decision-makers on whether the parties' procedural rights have been respected.
" (see OFT's related page).

Commission proposes the establishment of a cybercrime center

"The Commission proposed today to establish a European Cybercrime Centre within Europol to become the Union's focal point in the fight against cybercrime. The Centre would pool European cybercrime expertise and training efforts. It would warn EU countries of major cybercrime threats, of new ways to commit online crimes and identify organised cybercrime networks and prominent offenders in cyberspace. The Centre would also be able to respond to queries from cybercrime investigators, prosecutors and judges as well as the private sector on specific technical and forensic issues. It would provide operational support in concrete investigations and help set up cybercrime Joint Investigation Teams" (see the Communication, the Commission's press release and the DG's press release).

MEPs and Council reach agreement on Roaming

"...members of the European Parliament and representatives of the Council and the European Commission have reached a preliminary deal on new EU Roaming rules, following the European Commission's proposal of last year (see IP/11/835). These rules will lead to a structural and durable solution to the high cost of using mobile phones and other smart devices whilst travelling in the EU. The European Parliament is expected to approve this agreement in May 2012 and the Council in June, paving the way for the new rules to enter into force on 1st July 2012" (see the Commission's, the EP's and the Council's press releases).

Tuesday, 27 March 2012

Belgian NRA consults on its 2012 operational plan

BIPT has launched its consultation on its 2012 operational plan (in french).

Greek NCA accepts Multichoice's and Forthnet's concessions

The Greek NCA accepted Multichoice's and Forthnet's concessions, according to which the exclusivity clause as regards the carriage of free-to-air channels on their platform, namely, Nova, will no longer be in force, in lieu of the non imposition of fine for the conduct (see the press release, in greek, and an older post on the Opinion issued).

Monday, 26 March 2012

AG's Opinion in Vodafone España cases

AG Sharpston delivered her Opinionin Joined Cases C‑55/11, C‑57/11 and C‑58/11, the conclusion of which reads as follows:

"(1) Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) does not authorise Member States to charge mobile telephony operators a fee for the use of facilities installed on public property and owned by another undertaking.

(2) On a proper construction of the second sentence of Article 13 of the Authorisation Directive, a fee does not satisfy the requirements of an objective justification, proportionality and non-discrimination, and the need to ensure the optimal use of the resources concerned if it is based on the revenue or market share of an undertaking or on other parameters that bear no correlation to the availability of access to a ‘scarce’ resource as a result of the undertaking’s actual use of that resource.

(3) Article 13 of the Authorisation Directive has direct effect.
"

General Court rules that Slovak Telekom shall provide pre-accession documents to the Commission

The General Court of the EU, ruled that Slovak Telekom shall provide pre-accession documents pertaining to the 102 TFEU investigation instigated by the European Commission.

ICO consults on its guide to Privacy and Electronic Communications Regulations audits

ICO, UK's privacy watchdog, has launched its consultation as regards its guide to Privacy and Electronic Communications Regulations audits (see related page).

Commission opens Phase II on EMI's acquisition by Universal

"The European Commission has opened an in-depth investigation under the EU Merger Regulation into the proposed acquisition of the recorded music business of EMI by Universal Music Group. The Commission's initial market investigation indicated that the proposed transaction may raise competition concerns in the wholesale of physical and digital recorded music in numerous Member States as well as in the European Economic Area (EEA) as a whole, particularly in light of the merged entity's high market shares and increased market power...

...

The Commission’s initial investigation showed, in particular, that the proposed transaction would lead to high combined market shares in the wholesale of physical and digital recorded music in the EEA and in numerous Member States and that, post merger, Universal would enjoy increased market power vis-à-vis its direct customers.

At this stage of the investigation, the new entity, which would be almost twice the size of the next largest player in the EEA, would not appear to be sufficiently constrained by the remaining competitors on the market, by its customers' buyer power, and/or by the threat of illegal music consumption (so-called "piracy").

The Commission will now investigate the proposed merger in-depth to determine whether these initial concerns are confirmed or not.
" (see the full press release).

Friday, 23 March 2012

OFT issues Annual Plan

OFT's Annual Plan has been released.

Polish regulator fines telecoms companies as regards specific PRS practices

"The President of UOKiK challenged the practice applied by Telecom Media, Polskiej Telefonii Cyfrowej and P4.

The proceedings against Telecom Media were instituted in July 2011. Text and voice messages persuading consumers in 2010 to take part in the lottery Wielki Quiz z Nagrodami Edycja IX (Great Quizz with Awards IX Edition) raised doubts of UOKiK. The Office established that such messages were sent out to consumers who had not agreed beforehand to receive business information from the undertaking. Furthermore, the messages implied that a given subscriber had already got or would get a prize right after sending back a respond, e.g. URGENT: transfer protocol of PLN 60 thousand and Sony Home Cinema system are waiting for you. We want to enter the surname of the owner of phone_NUMBER. In fact, sending back a text message guaranteed the participation in the lottery only. The messages sent to consumers contained neither the information on the trade name of the contest organizer nor the price of sending a message by participants to the contest. Moreover, they failed to inform that the contest terms were determined in the regulation available at the company website and sending back the sms meant the acceptance of its terms and conditions. The President of the Office decided Telecom Media misled consumers and fined the undertaking with PLN 113 105. Additionally, the company is obliged to publish the entire decision on its website for the period of three months.

...

Polska Telefonia Cyfrowa in 2009 also encouraged consumers to take part in lottery 100 Mercedes from Era by sending out sms to consumers who did not give their consent to receive any commercial information. Many consumers wouldn’t have taken part in the contest but for SMS and MMS received from the operator.

The President of UOKiK stated that the company violated collective interests of consumers, however, the President resigned from imposing a fine when PTC commited to change the practice, i.e. send marketing messages only to persons who have agreed to that. Moreover, the harmed consumers will be given a compensation – additional packages of minutes and redress of PLN 500. In addition to that, PTC must transfer PLN 311 thousand as a donation to Kid Protect foundation aimed at holding and conducting classes for pupils of primary school, class 4-6, parents and teachers within the safe use of telephone and the Internet. It is essential for the undertaking to establish and publish a guidebook for using the Premium services, which are applied inter alia in lotteries and contests held by PTC. The company will enable its subscribers to set a limit to using sms services of the premium rate.

Moreover, the Office questioned the information provided by Play during the advertising campaign. The proceedings were initiated in December 2010 and regarded the promotion campaign of Play Fresh carried out in 2009. According to UOKiK, when the company P4 was using the slogan Free SMS in Play Fresh, in a part of adverising materials it failed to place information concerning the time limits for using free text messages within the offer. In fact, the time allowed for sending free of charge messages was greatly limited, and additionally dependent on the value of charge (e.g. a minimum charge value PLN 50 – 50 days). A consumer aware of the shorter period of time for using free sms than the validity period of the purchased card (365 days) possibly wouldn’t have used the company’s offer. For misleading consumers the President of UOKiK imposed on P4 a fine amounting to PLN 495 655.

Telecom Media appealed to the court against UOKiK’s decision. P4 still has a chance to lodge an appeal whereas PTC has already done it.
" (see UOKiK's full press release).

FCC proposes 40 MHz more for mobile broadband

"The Federal Communications Commission (FCC) took steps ... to increase the nation’s supply of spectrum for mobile broadband by removing unnecessary barriers to flexible use of 40 megahertz of additional spectrum currently assigned to the Mobile Satellite Service (MSS) in the 2 GHz band. This proposal would carry out a recommendation in the National Broadband Plan that the Commission enable the provision of stand-alone terrestrial services in this spectrum." (see the press release and NPRM).

FCC's NPRM on interoperability and efficient use of spectrum in 700 MHz band

"The Federal Communications Commission (FCC) today issued a Notice of Proposed Rulemaking (NPRM) to promote interoperability and encourage the efficient use of spectrum in the commercial Lower 700 MHz band (698-746 MHz). The rulemaking is designed primarily to examine the interference concerns should the Lower 700 MHz band utilize a single band class for devices operating across the Lower 700 MHz A, B, and C Blocks" (see the press release and NPRM).

Waiver of BT’s price notification requirements for charges in relation to the transfer and migration of legacy to new Ethernet services

OFCOM consults on its "proposal to waive the price notification requirement in relation to the transfer and migration charges from BT's legacy Ethernet services (specifically Wholesale Extension Services (WES), Wholesale End-to-End Service (WEES) and Backhaul Extension Service (BES)) to BT's new Ethernet services (specifically Ethernet Access Direct (EAD)), which will allow BT (i.e. Openreach) to introduce this offer (as set out in Annex 6) in advance of the normal 90 days' written notice period so that it will become effective on 10 April 2012" (see the related page).

Spanish NCA's report on the foreseen in a new law merger of all regulatory bodies

"In its meeting on 15 March 2012 the CNC Council approved the Report on the Bill to Create the National Markets and Competition Commission (CNMC). The CNC takes the view that if done properly, we have before us an opportunity to improve the current system of supervision and regulation" (see the press release).

Greek Digital Plan Secretary consults on tender document concerning the rural broadband state aid plan

Greek Digital Plan Secretary launched its consultation on the tender document concerning the rural broadband state aid plan (see related page and older plan on the plan).

Thursday, 22 March 2012

OPTA's plans for regulatory holidays to KPN as regards fibre to business customers services suspended by the Commission - update

"The European Commission has decided to investigate whether the Dutch telecoms regulator (OPTA) should oblige KPN (the main Dutch telecoms operator) to give alternative operators access to its infrastructure so they can also offer high-speed broadband connections to business customers. Without this access, business customers may not have a choice of competitive deals from different operators, and could therefore pay higher prices. The Commission has serious doubts whether OPTA's decision not to regulate access to KPN's fibre-to-the-office (FttO) networks and to high-quality wholesale broadband is compatible with EU telecoms rules. In the Commission's view, OPTA's approach could have a negative effect on competition and the future development of fibre investment and innovation. The Commission also believes that OPTA's plans, if implemented, could affect trade between Member States. Conditions for access to the fibre network in The Netherlands will determine the cost and the ability of other operators (including those established in other Member States) to provide telecoms services. The Commission has therefore suspended OPTA's plans.

OPTA has decided to neither regulate access to KPN's fibre-to-the-office network, nor to oblige KPN to provide other companies with high quality wholesale broadband access over its fibre network. Under the Commission's Recommendation on Next Generation Access Networks (see MEMO/10/424), a telecom regulator can only decide not to impose regulated unbundled access to the local loop (the physical link between the local exchange and the customer) if it can show that alternative operators can get such access on the market at competitive terms, which is likely to result in effective competition downstream.

The Commission has suspended these plans, because it needs further proof from OPTA that the market for unbundled access to the fibre-to-the-office network is a market in its own right and that it does not require regulation. OPTA has already found KPN to have significant market power (SMP) in the market for unbundled access to fibre-to-the-home, and has imposed a full set of regulations in this area. OPTA has not sufficiently demonstrated that KPN's considerable and stable market share, alongside other indicators, would not prevent it from using its strong market position to act independently of its competitors, customers and end-users. OPTA has also not sufficiently justified why high quality wholesale broadband access over KPN's fibre network should not need regulation.
" (see full press release and related page).

See the Commission's Decisions under which the case entered phase II, here and here.

UPDATE (26/04/2012): BEREC makes available its Opinion which interestingly differs in some points from that of the Commission and reads in summary as follows:

 "Having reviewed OPTA’s reasoning against Commission’s concerns, BEREC’s opinion is as follows:
 

(a) BEREC believes that OPTA provided enough evidences regarding the lack of substitutability between unbundled copper network access and FttH-ODF network access on one side and FttO-ODF network access on the other. Therefore, BEREC reckons that the Commission’s serious doubts relating to the market definition may be not justified.
 

i. On the cost and risk of FttO, BEREC appreciates the assumptions plausible and the argumentations correctly developed. Therefore, BEREC is not supporting the Commission’s serious doubt.
 

ii. On the partial overlap between FttH and FttO areas, BEREC generally agrees with the Commission argument. Nevertheless, BEREC considers the quantification of such argument as negligible and therefore BEREC believes that it should not affect OPTA conclusion.
 

Finally, about the market definition, BEREC would like to emphasise that its opinion applies to the specific market conditions in the Netherlands and no general conclusion could be therefore inferred.
 

(b) On the effectiveness of KPN competitive advantage, BEREC records some uncertainty concerning future growth projections and the presence of certain level of infrastructure-based competition in the market. Nevertheless, BEREC agrees with the Commission’s serious doubts and therefore shares Commission’s view in favour of designating KPN as SMP operator."

UPDATE (02/05/2012): Summary of conculsions in BEREC's Opinon as regards Wholesale Broadband Acess and Wholesale Terminating Segments of Leased Lines markets reviews by OPTA:

" On the basis of the economic analysis set out in section 3 above, BEREC considers that the Commission’s serious doubts regarding the draft decision of the Dutch regulator on the High Quality WBA fibre access - as expressed in the EC’s letter to OPTA of 21 March 2012 – are mostly justified. 

BEREC is of the opinion that the aim of regulation, an NRA imposes, should be forward looking and it should prevent possible constraints and market failures in the future.
 

Even if currently there are no competition problems as claimed by the market players and there is no evidence of a change of policy by KPN on this market as claimed by OPTA, it exists a risk of such a change, because KPN is the only provider on this market and never a buyer. It can thus change the strategy without notice, because there is no countervailing buyer power from wholesale customers. 
Two cases are possible:

- The intention to climb the value chain with replacement by IP offer leaving less differentiation and added value to its competitors (that is yet the case at level 2 with merchant unbundling offer less attractive than HQWBA) and by decreasing attractiveness of present HQWBA offer

- Leaving the market to put higher entry barrier to retail VPN markets to his competitors
 

Therefore BEREC believes that the limitation on the scope of the access obligation create a potential barrier to the single market.
 

The following measures may be taken into account in order to address the above possible market problems:

- Access obligation on the fibre-based network: obligation to answer to any reasonable request

- Non-discrimination of delivery (taking into account that it means “under similar circumstances” and thus that differentiation on base of an objective situation – e.g. a dense business area with larger scale effect or size of the project – stays possible)

- Transparency obligation
 

In the light of the Commission’s serious doubts and the argumentation above, BEREC would recommend to amend the draft measure so as to not exclude fibre access from the scope of the access obligation."

UPDATE (08/05/2012): OPTA withdraws market 5 and 6 notified market reviews (see here) as well as the FttO notification (see here).

Talk Talk's request for permission to appeal rejected by CAT

CAT has rejected Talk Talk's request for permission to appeal CAT's judgment rejecting the appeal of OFCOM's wholesale broadband acces price control.

Commission refers Hungary to Court over telecoms tax

"The European Commission has decided to refer Hungary to the EU's Court of Justice because it continues to impose a specific tax on the turnover of telecoms operators in violation of EU rules. This tax was one element of a "crisis tax" introduced in October 2010 on three major sectors of the economy (retail commerce, telecoms and energy) to improve Hungary's budgetary position. The Commission considers this tax to be illegal, because EU telecoms rules allow sector-specific charges only to cover the specific costs of regulating the sector, and not to generate additional revenue for the central budget. Increasing the financial burden of telecoms operators could have an impact on consumers' bills, distort competition and impede investment in a sector expected to drive growth under the Digital Agenda.

Hungary has also failed to comply with its obligation under EU law to consult interested parties in an appropriate manner on any amendments of charges applied to telecoms operators.

The rate of the charge levied on telecom operators varies between 0% and 6.5%, on the basis of gross revenues (excluding VAT). The amount of budgetary revenue (over 200 Million euros per annum) that the tax has started to generate reinforces the distortive effects of this charge, and creates a considerable obstacle to the achievement of the Digital Agenda objectives.
" (see the full press release).

Commission refers Portugal to Court for non compliance with judgment on universal service

"The European Commission has asked the European Court of Justice to impose a fine on Portugal because it has not respected a 2010 Court judgment requiring it to follow EU telecoms rules when deciding who should provide universal service in Portugal. The Commission is suggesting a lump sum of €7 571/day and a daily penalty payment of €38 984 until the obligations are fulfilled.

Under EU law (the Universal Service Directive), basic services must be available throughout the country, including connection to the telephone network at a reasonable price, public pay telephones and emergency telephone numbers free of charge. The selection of any universal service provider must be based on an efficient, objective, transparent and non-discriminatory procedure. This means that all interested companies should be able to take part, and no company should be excluded from tendering. Despite a 2010 ruling of the EU Court of Justice (C-154/09), Portugal has still not designated its universal service provider(s) in line with EU law. Today's decision to refer Portugal back to the Court, with a view to imposing financial penalties, follows a previous warning from the Commission in April 2011.
" (see the full press release).

Commission sends Reasoned Opinion to Bulgaria over DTT auctions

"The Commission considers that Bulgaria did not comply with the requirements of the Competition Directive when it assigned in 2009 the five spectrum lots available for digital terrestrial broadcasting via two contest procedures, limiting without justification the number of undertakings that could enter the market concerned. Moreover, the selection criteria of the contest procedures were disproportionate and therefore not in line with the requirements of the Competition, Authorisation and Framework Directives. Applicants were not allowed to have links with content providers (TV channels operators), including operators active only outside Bulgaria, or with broadcasting network operators.

The decision takes the form of a reasoned opinion, the second step in infringement proceedings under Article 258 of the TFEU. Bulgaria now has two months to inform the Commission of the measures taken to address the breach of EU Law and allow effective entry into the Bulgarian digital terrestrial broadcasting infrastructure. If the national authorities do not reply satisfactorily within two months, the Commission may refer the matter to the Court of Justice.

The Commission welcomes Bulgaria's recent announcement of the launch of a tender procedure for the assignment of this spectrum. In December 2011, Bulgaria amended its legislation to allow for the launch of a new tender procedure before 1 September 2013. The Commission expects Bulgaria to publish the conditions of the tender as soon as possible, so that potential new entrants can prepare their applications, be selected and enter the market before the date set for the analogue switch off, 1 September 2013. The Commission will monitor that the tender conditions are in line with the Directives and allow effective entry into the digital terrestrial broadcasting infrastructure market.
" (see the Commission's full press release).

Wednesday, 21 March 2012

Commision's Art. 7 Comments to ANCOM on the latter's notified modification of the cost accounting separation obligation

The European Commission had no comments to make, in its decision, to the Romanian regulator on the latter's notified proposed modification of the cost accounting separation obligation.

UK's Ten Super-Connected Cities revealed

"Birmingham, Bristol, Leeds & Bradford, Newcastle and Manchester along with the four UK capital cities have all successfully bid to become Super-Connected Cities with ultrafast fixed broadband access" (minimum download speed of at least 80Mbps), "and large areas of public wireless connectivity.

The 10 cities will share £100 million to help deliver ambitious plans to use super-connected status to drive growth, attract new businesses and transform the way services are provided and accessed.

And the Chancellor has announced that a new £50 million fund will be created to bring ultra-fast broadband to even more UK cities.

Together the 10 proposals involve providing ultrafast broadband access to around 1.7 million premises and 200,000 businesses by 2015 while almost 3 million residents would have access to a wireless network
" (see the Ministry's related page).

BIPT consults on 800MHz

The Belgian NRA launched a consultation concerning various issues raised by the refarming and granting of rights process in the 800Mhz band.

Art. 29 Data Protection Working Party adopts 2012 - 2013 work programme

Art. 29 Data Protection Working Party has adopted its 2012 - 2013 work programme.

Greek Government sets under consultation Greece's Digital Plan

The Greek Ministry of Administrative Reform and E-Governance has launched its consultation on the country's digital plan & strategy (see the Ministry's related page with all relevant documentation, in greek).

Tuesday, 20 March 2012

Spanish NCA issues report on draft Audiovisual services Law

CNC has issued its report concerning the impact of the draft Audiovisual services Law, on competition within the respective market (see related page, in spanish).

Commission refers to Polish NCA concentration of ITI and Canal+ media groups

The referral "regards the concentration covering two transactions (first consisting in taking a joint control by two media groups, Canal+ and ITI over TVN; the other – taking a joint control by Canal+ and TVN over the pay television – Cyfra+ and ITI Neovision),...

Canal+ Group belongs to Vivendi, the international group. It operates mainly in France and deals with the production, distribution and marketing of tv channels on any types of platforms. In Poland it operates as an operator rendering services of pay satellite tv – Cyfra+.

ITI Group - International Trading and Investment Holdings – conducts its entartainment and media activity, in particular it offers tv transmissions, pay satellite tv, on-line services as well as operates in publishing industry. The group, among others, consists of TVN tv company (broadcaster of several licenced pay tv thematic channels) and ITI Neovision (the owner of Platform “N” satellite tv).

Taking into account the fact that the considered transaction will have the impact on the Polish market, the case was referred to UOKiK. According to the European Commission, the Polish antitrust authority has gained experience in assessing the tv and advertisement sectors, which is reflected in decisions already issued in this respect. UOKiK has agreed to consider the case
" (see UOKiK's full press release).

Finnish Government considers merging Competition and Consumer Authorities

"The Ministry of Employment and the Economy has announced that it will set up a steering group to investigate the possibility of merging the Finnish Competition Authority and the Finnish Consumer Agency, and at the same time also assess whether the National Consumer Research Centre could be combined to the potential new entity as well.

The investigation will be completed during the spring. The possible decision to merge will be made later based on the investigation. If the decision to merge is made, the new office could start operations in the beginning of 2013.
" (see the Finnish NCA's press release).

Commission's Art. 7 Comments to ComReg on the latter's modification of WBA price control and transparency remedies

The European Commission had no comments to make, in its decision, to the Irish NRA on the latter's modification of the wolesale broadband access price control and transparency remedies.

OPTA communicates to the Commission its re-evaluated review of the fixed retail telephony market

"In its verdict dated 30 September 2011 on OPTA’s market analysis decision fixed telephony of 19 December 2008 (OPTA/AM/2008/202721) the court ruled that OPTA should not have applied the three crite-ria test as a basis for the withdrawal of remedies on the business retail market (call services and connec-tion) for fixed telephony. The court also ruled that OPTA had not sufficiently motivated that the retail business market would be effectively competitive at the end of the regulation period (or shortly thereafter). OPTA was ordered to make a new decision concerning the retail business market for fixed telephony in which it would better motivate whether the imposed remedies in the fixed telephony decision of 2005 (OPTA/TN/2005/203468) should be continued after 1 January 2010.

In the supplementary draft decision (OPTA/AM/2012/200689) OPTA has re-examined the retail business market for fixed telephony. In the abovementioned 2008 decision OPTA concluded that given the general and telephony specific wholesale remedies in place, the business retail market for fixed telephony was not effectively competitive. The court agreed with this conclusion.

In the supplementary draft decision OPTA concludes that the following potential competition problems exist on the business retail market for fixed telephony: excessive pricing (limited), margin-squeeze, price discrimination
" (see OPTA's summary notification form of its review to the Commission).

ANACOM's final decision on the pricing of the (terrestrial) television signal distribution and (analogue) broadcasting service, as charged by PTC

"By determination of 9 March 2012, ANACOM approved the final decision on the pricing of the (terrestrial) television signal distribution and (analogue) broadcasting service, as charged by PT Comunicações (PTC).

This decision orders PTC to lower the price of each of the features which integrate the analogue television signal distribution and broadcasting service, by at least 29.6%, so as to guarantee that the price regime complies with the principle of cost orientation. This percentage may be adjusted at a future time by ANACOM
" (see the press release).

Cooperation Protocol between ANACOM and Vodafone Portugal in the field of electromagnetic conformity of base stations

"ANACOM and Vodafone Portugal have concluded a protocol laying down principles of mutual cooperation for the development of joint action in the field of electromagnetic conformity of base stations, principles which involve knowledge exchange and inter laboratory tests for inter comparison of the results, as well as for the promotion of action aiming to develop the qualification, improvement and specialisation of laboratory activity" (see the press release).

ANACOM issues final decision on procedures required for the termination, on the initiative of subscribers, of contracts

"By determination of 9 March 2012, ANACOM approved the final decision on procedures required for the termination, on the initiative of subscribers, of contracts governing the offer of public networks or of publicly available electronic communication services" (see the Portuguese NRA's press release).

Commission consults on Access to Interoperability Information of Digital Products and Services

The European Commission has launched a consultation "on the needs, barriers and opportunities for measures leading significant market players to license interoperability information not covered by standards" (see the related page).

Monday, 19 March 2012

ComReg publishes decision on the release of the 800 MHz, 900 MHz and 1800 MHz spectrum bands

"The Commission for Communications Regulation (ComReg) today published its response to consultation and decision for the auction of a number of individual rights of use in the 800 MHz, 900 MHz and 1800 MHz radio spectrum bands.

This auction will offer spectrum rights of use across these three critical bands for the period 2013 to 2030. The spectrum rights of use being auctioned, in particular the 800 MHz and 900 MHz spectrum bands, are highly suitable for advanced mobile services due to their excellent propagation properties which give high quality and wide area coverage plus improved in-building reception.

In total, 280 MHz of sub-2 GHz spectrum (i.e. 140 MHz of paired spectrum) will be made available, more than doubling the currently licensed assignments in these particular bands.

The main features of the auction are as follows:

- It will be a combinatorial clock auction, meaning that it allows bidders to make packaged bids over multiple rounds of bidding within a prescribed timeframe;

- The winners of spectrum will be those who make the highest bids (consistent with the rules of the auction);

- The first phase of the auction will determine the quantity of spectrum that a winning bidder is awarded and the second phase will determine the exact frequencies within the spectrum bands;

- To accommodate the current expiry dates of GSM licence assignments, spectrum rights of use will be auctioned across two time periods, applicable to each of the three bands being auctioned. The first period will run from 1 February 2013 to 12 July 2015 and the second period will run from 13 July 2015 to 12 July 2030.

- To safeguard competition, there will be limits on the maximum amount of spectrum rights of use that any one bidder can acquire, either as a single entity or in combination with other bidders.

To ensure the optimal use of these important spectrum bands, spectrum rights of use in these bands are subject to a minimum price of currently calculated as €20M per lot of 5 MHz of paired sub-1 GHz spectrum, and €10M per lot of 5 MHz of paired 1800 MHz spectrum for a 15 year licence. These minimum prices are based on a conservative lower bound of an internationally benchmarked level. Winning bidders will be required to pay a portion of this amount up-front, with the remainder paid annually over the duration of the licence. The minimum prices will be finalised in advance of the auction to update for any changes to input factors.
" (see the press release, the NRA's response to consultation and decision along with annexes, a report on several issues prepared for ComReg and the fifth benchmarking report prepared for the NRA

ARCEP notifies to the Commission draft review of the call termination market regarding MVNO's

ARCEP has notified, under article 7, to the European Commission, its draft review of the call termination market regarding MVNO's.

CNIL sends a detailed questionnaire to Google

CNIL, acting on behalf of and in cooperation with Art. 29 Working Party, "sent Google a detailed questionnaire on its new privacy policy. The questionnaire includes 69 precise questions and aims at clarifying the consequences of this new policy for Google’s users, whether they have a Google Account, are non authenticated users, or are passive users of Google’s services on other websites (advertising, analytics, etc.)" (see CNIL's press release and questionnaire).

Friday, 16 March 2012

ANACOM approved agreement concluded between Optimus, TMN and Vodafone Portugal concerning exact allocation in 1800MHz

"By determination of 9 March 2012, ANACOM decided to approve the agreement concluded between Optimus, TMN and Vodafone Portugal, on the exact location of spectrum allocated to these operators in the 1800 MHz band, in accordance with the provisions of the Multiband Auction Regulation (Regulation No. 560-A/2011, of 19 October).

It was also decided to amend the current National Frequency Allocation Plan (NFAP), so as to reflect the determination, as well as radio licenses covered by the approved redistribution of frequencies.

ANACOM determined also that Optimus, TMN and Vodafone Portugal must communicate, within 10 days from reception of the notification of this decision, the date on which the frequency redistribution will take effect.
" (see ANACOM's related page).

OFCOM receives dispute concerning the level of BT’s charges for Wholesale Extension Services

"Ofcom has been asked to resolve this dispute concerning the level of BT’s charges for
Wholesale Extension Services (“WES”) under section 185(1A) of the Communications Act 2003 (“the Act”)
" (see relelated page).

BIPT consults on Belgacom's multicast bitstream access reference offer

The Belgian regulator has launched a consultation on Belgacom's multicast bitstream access reference offer (in french).

Romanian regulator consults on 800, 900, 1800 and 2600 MHz auction documents

ANACOM has launched its consultation in relation to the documents of the auctions to be held this year regarding the 800, 900, 1800 and 2600 MHz bands (see press release).

Thursday, 15 March 2012

CJEU's decision in Pereničová and Perenič case

The Court's operative part of its decision in Case C-453/10 reads as follows (for a brief analysis, see www.recent-ecl.blogspot.com on the AG's Opinion which was followed by the Court in this instance):

"1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, when assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole. That directive does not, however, preclude a Member State from providing, in compliance with European Union law, that a contract concluded with a consumer by a trader which contains one or more unfair terms is to be void as a whole where that will ensure better protection of the consumer.

2. A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an annual percentage rate of charge lower than the real rate must be regarded as ‘misleading’ within the meaning of Article 6(1) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) in so far as it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is for the national court to ascertain whether that is the case in the main proceedings. A finding that such a commercial practice is unfair is one element among others on which the competent court may, pursuant to Article 4(1) of Directive 93/13, base its assessment of the unfairness of the contractual terms relating to the cost of the loan granted to the consumer. Such a finding, however, has no direct effect on the assessment, from the point of view of Article 6(1) of Directive 93/13, of the validity of the credit agreement concluded.
"

CJEU decided in Case C-292/10

The Court's operative par of its judgment reads as follows:

"1. In circumstances such as those in the main proceedings, Article 4(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an Internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union.

2. European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant.

3. European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown.

4. Article 3(1) and (2) 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 does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established.
"

UK's Competition and Markets Authority decided

"A single Competition and Markets Authority, which will simplify and strengthen the competition landscape, was announced today by Business Minister Norman Lamb.

The announcement follows an extensive consultation, which identified that the majority of respondents felt the current regime is too complicated and contains a lot of duplication.

The new independent body will bring together the Competition Commission (CC) and the competition functions of the Office of Fair Trading (OFT) to form the Competition and Markets Authority (CMA).

The move is designed to make the competition regime more effective and efficient by streamlining procedures, increasing the deterrent effect of the regime and making it less burdensome on business. This will be achieved by reforming competition law and strengthening enforcement processes. It is currently expected that the authority will be fully operating by April 2014.

The CMA will have a primary duty to promote effective competition in markets, across the UK economy and for the benefit of consumers. This includes responsibility for merger regulation, market investigations, cartel and antitrust cases, as well as a number of functions with respect to the regulated utilities.
" (see BIS press release, related page, the Government's response to the consultation, the impact assessment and the CC's press release).

Cypriot Data Protection Officer consults on new EU data protection package

The Cypriot Data Protection Officer has launched a consultation on the new EU data protection package, in a way to help formulate the State's stance towards the package (see the press release, in greek).

Commission's Art. 7 Comments to ANACOM on the latter's notified amendment of remedies on the market for analogue broadcasting transmission services

The European Commission made, in its decision, the following comments to ANACOM on the latter's notified amendment of remedies on the market for analogue broadcasting transmission services:

"Need to carry out a new market analysis

In the previous review of the market for broadcasting transmission services (case PT/2007/0655) notified to the Commission in June 2007, the Commission noted that the market was likely to undergo significant changes during the timeframe of the market review. The Commission therefore asked ANACOM to monitor the development of the market and review its analysis, if deemed necessary.

Notwithstanding the emergence of alternative broadcasting platforms, ANACOM has still not carried out a new market analysis although it has pointed out that it plans to do so after the complete switch over from analogue to DTT, which is foreseen for the end of April 2012. The Commission urges ANACOM to carry out a new market analysis as soon as possible and notify the results to the Commission in line with the provisions set out in Article 7 of the Framework Directive.
"

Commission objects withdrawal of access obligation in Latvian mobile termination market - Update

The Commission's decision has been made public (see also older post on the case).

UPDATE (26/04/2012): BEREC's Opinion is available and which in summary reads as follows:

"BEREC comes to the conclusion that the serious doubts of the Commission ex-pressed in its letter of 13 March 2012 with regard to the non-imposition of an access obligation on Telekom Baltija and 12 MVNOs by SPRK are justified, because the draft measure is not compatible with the requirements referred to in Art 8(4) of the Access Directive in conjunction with Art 8 and Art 16(4) of the Framework Directive, and could create a barrier to the internal market.
 

BEREC therefore advises that the draft measure should be amended in terms of add-ing an access obligation to the remedies already imposed for Telekom Baltija and the 12 MVNOs."

UPDATE (27/04/2012): Latvian NRA removes notification (see the Commission's notice).

Wednesday, 14 March 2012

Greek Ministry of Infrastucure consults on Analysis Mason's findings in the latter's analysis of property rights in UHF and 2.6GHz spectrum

The Greek Ministry of Infrastucure has launched its consultation on Analysis Mason's findings in the latter's analysis of property rights in UHF and 2.6GHz spectrum.

The summary report provides amongst other:

"Our overall recommendations regarding mobile and DTT licensing in Greece in the UHF and 2.6GHz bands are as follows:

- The Hellenic Government should proceed with planning for the award of the 800MHz sub-band for mobile use, in line with the European Commission Decision of 6 May 2010 on harmonised technical conditions of use in the 790–862 MHz frequency band for terrestrial systems capable of providing electronic communications services in the European Union (2010/267/EU). This will necessitate the migration of military systems from the upper part of the 800MHz band, to alternative spectrum. We understand that the Hellenic Government is considering alternative options for this, including the possibility of migrating military systems from the 800MHz to the 700MHz band.

- The Hellenic Government should also proceed with planning for the award of the 2.6GHz band for mobile use, in line with the harmonised European plan set out in the Commission Decision of 13 June 2008 on the harmonisation of the 2500–2690MHz frequency band for terrestrial systems capable of providing electronic communications services in the Community (2008/477/EC). However, it is not clear that sufficient demand exists in the market for the entire 2.6GHz band to be sold given the current market conditions in Greece. Therefore, we recommend that consideration be given to awarding only part of the 2.6GHz band at the current time, with the remaining spectrum reserved for future use. We note that award of 2.6GHz spectrum is contingent on the current legal matters regarding existing usage of the band in Greece for multi-point video distribution systems (MVDS) being resolved.

- Spectrum for mobile use in the 800MHz and 2.6GHz bands should be awarded via an auction.

- The Hellenic Government should proceed as soon as is practically possible with the award of rights to access and use spectrum in the 470–698MHz band for DTT, to accelerate the migration from analogue to digital terrestrial television and in the ASO process.

- In terms of the approach to licensing DTT, our analysis shows that assigning frequencies by multiplex is the method most commonly used, rather than assigning frequencies by individual DTT programming channel, or by DTT transmitter. The former approach enables multiplex operators to plan the DTT network within the available frequencies assigned to the multiplex, in accordance with the agreed co-ordination parameters (i.e. as defined within the ITU-R GE-06 Agreement and Plan and the associated bilateral agreements with neighbouring countries).
" (see Analysis Mason's summary report and final report and the Ministry's related page in greek).

EU challenges China's rare earth export restrictions before WTO

"The European Union today launched a second challenge of China's export restrictions on raw materials including 17 rare earths, as well as tungsten and molybdenum. Together with the US and Japan, the EU formally requested dispute settlement consultations with China in the World Trade Organisation (WTO). This follows a successful EU challenge at the WTO on similar restrictions for other raw materials earlier this year.

"China's restrictions on rare earths and other products violate international trade rules and must be removed. These measures hurt our producers and consumers in the EU and across the world, including manufacturers of pioneering hi-tech and 'green' business applications" said EU Trade Commissioner Karel De Gucht. "Despite the clear ruling of the WTO in our first dispute on raw materials, China has made no attempt to remove the other export restrictions. This leaves us no choice but to challenge China's export regime again to ensure fair access for our businesses to these materials."

China imposes a set of export restrictions, including export quotas, export duties and additional requirements that limit access to these products for companies outside China. These measures significantly distort the market and favour Chinese industry at the expense of companies and consumers in the EU.

The EU considers that these restrictions are in violation of general WTO rules and also of China's specific commitments on export duties as part of its WTO Accession Protocol. Earlier this year, the WTO confirmed the EU's claim that China's export restrictions on a different set of raw materials were incompatible with WTO rules.

Despite this recent ruling, China has not sent any signals that it would remove its wider export restrictions. The latest rare earth quota announcements further tighten the restrictions. Therefore, the EU decided to launch a second challenge on rare earth elements, tungsten and molybdenum. The EU hopes that these WTO consultations will lead to a satisfactory solution with China.

The EU supports and encourages all countries to promote an environmentally friendly and sustainable production of raw materials. However, the EU believes that export restrictions do not contribute to this aim; there are more effective environmental protection measures that do not discriminate against foreign industries
" (see the press releaase).

Joint Venture on Mobile Payments between Telefonica UK, Vodafone UK and EE notified to the Commission

The European Commission has received the prior notification of a concentration which relates to the creation of a joint venture between Telefonica UK, Vodafone UK and Everything Everyhwhere aiming to develop and standardise a common mobile payments service.

Commission objects withdrawal of access obligation in Latvian mobile termination market

Under the new Art. 7a, "The European Commission has suspended the plans of the Latvian telecoms regulator which could make it difficult for Latvian consumers to contact friends, family or businesses who use a different mobile network.

The Latvian telecoms regulator (SPRK) want to excuse 13 mobile operators in Latvia from a regulatory obligation under EU telecoms rules to allow their competitors to terminate calls on their networks. Telecoms network operators normally have a monopoly position in the market for voice call termination on their respective networks, and are therefore normally required by national regulators to grant each other access to their networks to connect calls to ensure that customers of one network can call customers on another.

The Commission has serious concerns regarding the Latvian proposal not to use what is known as an "access obligation" (set out in the EU's Access Directive, 2002/19/EC). The Commission is particularly worried that the lack of such an obligation - which is standard in most other Member States - would not allow for a swift resolution of access problems and could, thus, leave consumers unable to make calls to other networks. SPRK's proposal could also make it possible for mobile operators to refuse or delay access to their networks in an attempt to eliminate their direct competitors from the market
" (see the press release).

Competition Commission issues updated working paper on its pay tv market investigation

The UK Competition Commission has issued an updated working paper on its pay tv market investigation which was launched in August 2011 and a revised timetable as regards the case.

Magyar Telekom refers 900 MHz final decision to court

Magyar Telekom has announced it has referred to court the NRA's final administrative decision adhering to its first - instance decision to issue a fourth license to a consotrium of state-owned companies in the 900MHz band (see the operator's press release).

OFCOM consults on proposed variation of Everything Everywhere’s 1800 MHz spectrum licences to allow use of LTE and WiMAX technologies

"The mobile phone operator Everything Everywhere has submitted an application to Ofcom to use its existing spectrum to deliver 4G services. Allowing Everything Everywhere to reuse its spectrum in this way is likely to bring material benefits to consumers, including faster mobile broadband speeds and – depending on how Everything Everywhere uses the spectrum – potentially wider mobile broadband coverage in rural areas.

Ofcom has considered whether allowing Everything Everywhere to use this spectrum in this way would distort competition, and provisionally concluded that it would not. And given the benefits this would bring to consumers, Ofcom is minded to allow this change of use.
" (see OFCOM's related page and press release).

Commission Recommendation on preparations for the roll-out of smart metering systems

The European Commission has published in the OJ its Recommendation on preparations for the roll-out of smart metering systems.

BEREC preliminary findings on traffic management practices in Europe

"The most frequently reported traffic management practices are the blocking and/or throttling of peer-to-peer (P2P) traffic, on both fixed and mobile networks, and the blocking of Voice over IP (VoIP) traffic (mostly on mobile networks, usually based on specific contract terms). When blocking/throttling is implemented in the network, it is typically done through deep packet inspection (DPI).

Beyond this, BEREC has found a very wide range of practices across Europe, and an equally wide range of implementation methods and policy justifications for them. About one quarter of respondents provide justifications for certain traffic management practices based on what could be described as “security and integrity” concerns (e.g. controlling “spam” traffic) – though some of these traffic management measures are best described as congestion management techniques. For instance, in relation to congestion management, some operators use an “application-agnostic” approach (e.g. active buffering), while others use “application-specific” techniques (typically in order to throttle specific traffic, such as video streaming). About one third of the fixed operators manage their networks in order to offer specialised services (for the provision of facilities–based applications, e.g. telephony or TV) alongside a (public and best efforts) Internet access service.

BEREC also found a wide variety of data caps and “fair use” practices - these were not the main focus of its investigation, since (with
some exceptions) in general they do not imply differentiated treatment of traffic" (see BEREC's document).

Tuesday, 13 March 2012

BEREC's position on the Italian draft law providing amongst other for intervention on terms of access to Telecom Italia’s network

BEREC has released a statement which reads as follows:

"BEREC expresses deep concern over Italian legislature moves to undermine regulator’s independence It is with great concern that BEREC, the network of European telecoms regulators, has learned of the recent passage by the lower house of the Italian Parliament of a government decree purporting to regulate the terms of access to Telecom Italia’s network.
Under European law, the imposition of economic regulation, including access obligations, on Italian operators is the exclusive province of the national regulator, AGCOM. This has been clear since the adoption of the revised European Framework in November 2009, pursuant to which national regulators must operate independently from any other body in relation to the performance of their regulatory tasks. This means that regulators’ powers and discretion to design appropriate economic regulation for their markets must not be fettered by national legislation.
This issue was already considered by the European Court of Justice in December 2009, when it ruled that the Framework clearly confers on the regulator – and not the national legislature – the task of determining the need for regulation of national telecoms markets. Regulators, when carrying out the regulatory functions assigned to them under the Framework, have a “broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis”.
This is not the first time the integrity and independence of national telecoms regulators has been threatened by the actions of national governments or legislators. In previous cases the European Commission has expressed its concerns and taken appropriate legal action. We call upon the European Commission to speak out against what can only be described as a worrying trend, and trust that the Commission will closely monitor developments in Italy and promptly launch infringement procedures if the decree becomes law.
"

Friday, 9 March 2012

Settlement agreement between Greek State and Siemens on bribary case reached

An agreement between the Greek State and Siemens has been reached with the signing of the said agreement by the Greek Council of Ministers in relation to the bribary cases (see kathimerini.gr, in greek and online.wsj.com).

OFCOM releases minutes of fit and proper discussions in relation to BSkyB

"Ofcom has disclosed minutes of Ofcom Board meetings where the issue of fit and proper in relation to BSkyB was discussed.

The information, released under the Freedom of Information Act, shows that the matter was discussed in four Ofcom Board meetings: September 2011, November 2011, January 2012 and February 2012.

Ofcom has a duty under the Broadcasting Acts 1990 and 1996 to be satisfied that any person holding a broadcasting licence is, and remains, fit and proper to do so. In relation to the hacking and corruption allegations, new evidence is still emerging from the various enquiries. Ofcom is continuing to assess the evidence – including the new and emerging evidence – that may assist it in discharging these duties
" (see the statement and related page providing the minutes).

ComReg consults on the future of deflector licensing

"The original deflector licensing scheme was established in 1999, by the then Office of the Director of Telecommunications Regulation ("ODTR") following a public consultation (ODTR Doc 99/55). The scheme was established under the Wireless Telegraphy (UHF Televisions Programme retransmission) Regulations 1999 (S.I. 348/1999). From the outset, this was viewed as a temporary scheme, intended to regularise the activities of deflector operators who, up until that time, had operated without licences, and therefore illegally. The scheme permitted the provision of deflector services only in those geographic areas where a cable television service was unavailable, and the view was also expressed that the scheme would be wound up upon the introduction of Digital Terrestrial Television ("DTT") which, at that time, was expected to begin roll out in 2001.

...

Deflector operators were originally granted licences to enable them to retransmit the four UK national analogue terrestrial channels to their customers. They were required to identify four frequency channels which could be licensed to them for the purpose of providing such a service. Deflector operators are licensed on a "secondary basis" in the UHF band1 to the national analogue terrestrial television transmission service and the national digital terrestrial television service (DTT). This means that the deflector operators are required not to cause interference to other primary licensed users of the UHF band (such as licensed broadcasters), though they are not in turn protected from such interference as may be caused to them by other primary licensed broadcasters.

...

As of 31 December 2011, there were 14 deflector licensees operating in the State, mainly in the south, midlands and west. Following renewal notification in December 2011, only 6 of these licensees have so far renewed their licences for the calendar year 2012. The number of licensees has decreased in line with what ComReg understands to be a very significant decrease in the number of subscribers to deflector services. It is understood that the reduction in the number of subscribers is mainly due to increased competition from satellite transmission services
" (see the whole document under consultation by the Irish NRA).

ANCOM proposes one year extension of Telemobil's license in 450 MHz

"ANCOM submitted to public consultation a draft Government decision establishing the licence fee due for the one-year extension, by 24 March 2013, of the licence held by Telemobil in the 450 MHz band. In order to extend the licence, ANCOM proposes that Telemobil pays to the state budget a licence fee of EUR 1 million, a value proportionate to the amount paid at the time the licence was obtained, calculated by ANCOM by applying indexation to the historical value of the licence.

The licence is extended at the operator’s request and, after its expiry, ANCOM is to evaluate the opportunity to auction the released spectrum, in keeping with the interest of the electronic communications industry.

Telemobil was awarded the usage right in 1992. In 2001, the company launched mobile telephone services in this frequency by means of the CDMA technology.

During 2009, the commercial company Cosmote Mobile Telecommunications S.A., headquartered in Greece, as the buyer, and the commercial companies Zapp (Romania) B.V. and Saudi Oger Ltd., as the sellers, concluded a purchase agreement for all the shares held by the sellers in Telemobil. Up until now, the company has kept its own legal personality, it operates as a separate entity in relation to its customers, it signs interconnection agreements on its behalf, and it holds its own licences for the use of radio frequencies and licences for the use of numbering resources
" (see the Romanian NRA's press release).

Swiss Federal Council updates digital strategy

"Through their potential for innovation, information and communication technologies (ICT) offer numerous opportunities for the economy and society in Switzerland. For example, they enable efficient, individual and cheaper processes to be implemented. In order to make the most of this potential, the Federal Council has updated its strategy for an information society in Switzerland. The strategy is applicable immediately and will be further developed regularly.

By means of the strategy, the Federal Council designates the areas of activity in which the innovation potential of ICT can have a particularly great impact. As a basis for a sustainable information society, the Federal Council envisages high-performance, open transmission networks. For the first time it has therefore included the topic "Infrastructure" in its strategy. Also, the topic "Energy and Resource Efficiency" has now been incorporated, in order to achieve sustainable, environmentally friendly use of ICT. All the other areas of activity (see box) have been fundamentally updated to take new developments into account. The Federal Council's strategy for an information society in Switzerland is crucial for the activity of the federal administration and defines the Confederation's corresponding priorities for action
" (see the regulator's related page).

Thursday, 8 March 2012

Potential problem for e-commerce sites: see AG Mengozzi's Opinion in Content Services v Bundesarbeitskammer

AG Mengozzi's conclusion of the Opinion delivered in Case C-49/11 reads as follows:

"The requirements of Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts are not satisfied where the information required by Article 5(1) is made available on a web page which the customer can access by clicking on a hyperlink shown when the contract is concluded"

Article 5(1) of the said Directive provides:

"1. The consumer must receive written confirmation or confirmation in another durable medium available and accessible to him of the information referred to in Article 4 (1) (a) to (f), in good time during the performance of the contract, and at the latest at the time of delivery where goods not for delivery to third parties are concerned, unless the information has already been given to the consumer prior to conclusion of the contract in writing or on another durable medium available and accessible to him.

In any event the following must be provided:

- written information on the conditions and procedures for exercising the right of withdrawal, within the meaning of Article 6, including the cases referred to in the first indent of Article 6 (3),

- the geographical address of the place of business of the supplier to which the consumer may address any complaints,

- information on after-sales services and guarantees which exist,

- the conclusion for cancelling the contract, where it is of unspecified duration or a duration exceeding one year.
"

And Article 4 (1) (a) to (f):

"1. In good time prior to the conclusion of any distance contract, the consumer shall be provided with the following information:

(a) the identity of the supplier and, in the case of contracts requiring payment in advance, his address;

(b) the main characteristics of the goods or services;

(c) the price of the goods or services including all taxes;

(d) delivery costs, where appropriate;

(e) the arrangements for payment, delivery or performance;

(f) the existence of a right of withdrawal, except in the cases referred to in Article 6 (3);
".

Danish NCA clears Telia Denmark/Telenor radio access network sharing agreement

"On February 29 2012 the Danish Competition Council (DCC) cleared a case concerning a horizontal production agreement in the mobile telecommunications sector. The clearance is subject to conditions.

Telia Denmark and Telenor A/S plan to implement a network sharing agreement via a joint venture, Newco, by which they will jointly own, control and develop the RAN-infrastructure (Radio Access Network) needed for their respective businesses. RAN is a component in the production of mobile telecommunications (mobile telephony and mobile broadband). The purpose of the parties’ agreement is to optimize their respective businesses by obtaining efficiency gains, i.e. cost reductions and the creation of a better network in terms of better coverage and technology.

The DCC has identified six issues which give rise to anti-competitive concerns. Five of these issues are solved by commitments offered by the parties. Accordingly, the DCC has no grounds for action according to TFEU article 101(1) and Section 6 of the Danish Competition Act. The latter issue meets the criteria for individual exemption in TFEU article 101(3) and Section 8 of the Danish Competition Act
" (see the press release).

Prior notification of Toshiba's acquisition of HDD assets of Western Digital

It was reported some days ago in this blog, that the FTC required "Western Digital to divest selected Hitachi Global Storage Technologies assets related to the manufacture and sale of desktop hard disk drives to Toshiba" in lieu of approving the Hitachi's Storage Technologies acquisiton by Western Digital. The notified proposed concentration correspond thus to the FTC's conditions.

Bill on ACM Establishment Act submitted to the Dutch Parliament

"The Dutch Ministry of Economic Affairs, Agriculture and Innovation has submitted the bill on the ACM Establishment Act to the Dutch Parliament. When the bill is passed, the Netherlands Authority for Consumers and Markets (ACM) will officially see the light of day.

On February 27, the Dutch Ministry of Economic Affairs, Agriculture and Innovation submitted the bill called ‘Rules on the establishment of the Netherlands Authority for Consumers and Markets (ACM Establishment Act)’ to the Dutch Parliament in order to realize the planned consolidation of the Netherlands Consumer Authority (CA), the Netherlands Competition Authority (NMa), and the Netherlands Independent Post and Telecommunications Authority (OPTA).

On August 16, 2011, the CA, the NMa, and OPTA informed the Minister about the results of the Feasibility and Enforceability Test they had run on the bill.

The three authorities consider the bill feasible, but, at the same time, call for attention to a number of items regarding the bill. One of these items concerns the decision to make the new authority a so-called autonomous administrative authority without legal personality and without its own staff. It is recommended in the feasibility test to explain in the explanatory memorandum to the bill how that decision relates to the requirements for independence contained in European law. Based on these requirements, the ACM must be able to operate in an unbiased manner and independently from any private and public bodies, insofar it acts as the regulatory authority for the telecommunications, energy and transport markets. In connection therewith, the authorities additionally advised not to include in the bill an article on submitting proposed policy rules on regulation to the Minister of Economic Affairs, Agriculture and Innovation or to the Minister of Infrastructure and the Environment.

Furthermore, the CA, the NMa and OPTA have requested the Minister of Economic Affairs, Agriculture and Innovation to submit a separate bill on the improvement and simplification of the authorities’ procedures to the Dutch Parliament as soon as possible
" (see Dutch NCA's press release).

ANACOM amends portability regulation

"By determination of 1 March 2012, ANACOM has approved the Regulation amending Regulamento da Portabilidade (Portability Regulation - Regulation no. 58/2005 of 18 August, as amended by Regulation no. 87/2009 of 18 February and by Regulation no. 302/2009 of 26 July). The principal amendment inserted refers to the guarantee given to the subscriber that numbers will be fully transferred within a maximum period of one working day, which, only in specific exceptions, may be extended to three working days" (see the full press release).

EDPS Opinion on new data protection package

The European Data Protection Supervisor issued its Opinion on the data protection reform package (see also dedicated site and press release).

Commission sends Reasoned Opinions to Hungary

"The European Commission has today decided on further steps following Hungary’s reply to three letters of formal notice of 17 January ... and their legal analysis. The promise to change Hungary's legislation affecting the independence of the central bank addresses some of the key concerns of the Commission. Now Hungary needs to flesh out these commitments and provide evidence through new legislation. Hungary also needs to provide additional commitments and further clarifications. Depending on this additional evidence and information, the Commission will decide the next steps. At the same time, the Commission still has concerns about measures affecting the judiciary and the independence of the country’s data protection supervisor.

The Commission has thus decided today to send Hungary two reasoned opinions – the second stage under EU infringement proceedings after which the matter may be referred to the Court of Justice of the European Union – and two administrative letters. The reasoned opinions concern the independence of the data protection authority and measures regarding the retirement age of judges – which would lead to the anticipated retirement of 274 judges and public prosecutors. The two administrative letters are seeking further clarifications regarding the independence of the judiciary and the independence of the central bank
" (see the full press release and memo).

Wednesday, 7 March 2012

BIPT adopts final decision on its review of the fixed call termination market

BIPT has issued its final decision on its review of the fixed call termination market(see the NRA's page, in french, with full list of related documents and the Commission's Art. 7 comments in an older post).

New Art. 7a case on Spanish MTRs - update

The Commission's decision has been made public (see also older post on the case).

Portugal concludes 1st phase of the switch off of analogue television

"With the switch off of the analogue transmitter at S. Macário and the relays served by this transmitter on 23 February, the first phase of Portugal's national switch off plan has been successfully concluded, with analogue television signals now switched off throughout the mainland's coastal areas.

...

The next phase of the national DTT transition process begins on 22 March with the switch off of analogue signals in the Azores and Madeira. Around half a million people are covered by this phase of the switch off, but with penetration of the subscription television service in this area, in conjunction with recipients of "pacote zero", exceeding 90%, the number of people who will need to migrate is fairly small
" (see the NRA's full ).

OFCOM adopts final charge control review for LLU and WLR services

Following the consultation amongst other with the European Commission (see respective post), OFCOM has finally adopted its review of the charge control to be imposed as regards Local Loop Unbundling and Wholesale Line Rental services (see related and press release).

Greek Ministry of Infrastucure sets under consultation new electronic communications law transposing the telecoms package

The Greek Ministry of Infrastucure has set under consultation (in greek) its draft electronic communications law (in greek) transposing the telecoms package (see the Ministry's press release, in greek).

Tuesday, 6 March 2012

EETT makes public its decision on the incumbent's price control

The Greek NRA has made public its decision (in greek) covering the entirety of price control obligations imposed on OTE in the retail and wholesale markets.

Commission's Art. 7 Comments to OFCOM on the latter's proposed charge controls for LLU and WLR services

The European Commission, made the follwoing comments, in its decision, to the UK NRA, on the latter's proposed charge controls for LLU and WLR services:

"Forthcoming guidance on costing methodologies

The Commission notes that Ofcom proposes to set LLU and WLR charges principally on the basis of CCA FAC but introduces HCA for some assets in order to (i) reflect the forward-looking opportunity cost and achieve the right balance between allocative and dynamic efficiency and (ii) prevent BT from over-recovering the costs of assets deployed before 1 August 1997. Ofcom thus applies an adjustment to the RAV and values pre-1997 assets on the basis of HCA and post-1997 assets on the basis of CCA. This approach is applied similarly to copper loops, ducts, trenching and poles.

With regard to the valuation of duct assets deployed post-1997 on the basis of CCA, Ofcom also proposes to apply the indexation method and, in particular, to index the annual spend on the network by RPI rather than using the absolute valuation method proposed by BT.

Ofcom also proposes to apply an ‘anchor product pricing’ instead of an MEA approach in order to tackle the ongoing major technological changes that the transition to NGA entails. Ofcom considers, in this regard, that this option is appropriate to encourage efficient levels of investment and provide protection for consumers through a period of transition.

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 working on a recommendation on costing methodologies for key access prices. In the light of this, the Commission invites Ofcom to review its analysis upon publication of any relevant recommendations.
"

FTC orders Western Digital to sell assets to Toshiba

"According to the FTC's complaint, Western Digital's proposed acquisition of Hitachi Global Storage Technologies would likely be anticompetitive and would violate Section 5 of the FTC Act and Section 7 of the Clayton Act by reducing competition in the worldwide market for desktop hard disk drives. The FTC contends that the deal would reduce the number of competitors in that market from three to two and would likely allow Western Digital to exercise market power, resulting in higher prices for consumers.

The proposed settlement order remedies these competition concerns by requiring Western Digital to divest selected Hitachi Global Storage Technologies assets related to the manufacture and sale of desktop hard disk drives to Toshiba within 15 days of the acquisition. The time for the divestiture can be extended by 15 days, if necessary, to allow the companies to receive regulatory approval in other jurisdictions.

According to the FTC, Toshiba has the ability to replace Hitachi Global Storage Technologies as an effective competitor in the worldwide market for desktop hard disk drives. While Toshiba currently does not compete against Western Digital or Hitachi Global Storage Technologies in this market, it does make and sell hard disk drives for use in mobile and other end-use applications. Because Toshiba has extensive experience manufacturing these other types of hard disk drives, and has an existing worldwide infrastructure for the research, development, and sale of desktop hard disk drives, Toshiba is well-positioned to replace the competition that will be eliminated as a result of the proposed transaction
" (see the full press release).