Monday, 30 April 2012

ARCEP consults on its review of the wholesale terrestrial broadcasting services market

ARCEP has put in consultation its draft decision providing for the ex ante regulation of the wholesale terrestrial broadcasting services market (see related page, in french).

Commission's Art. 7 Comments to UKE on the latter's review of the market of access to the public telephone network at a fixed location

The European Commission, had no comments to make, in its decision, to the Polish NRA on the latter's review of the market of access to the public telephone network at a fixed location for residential and non - residential customers in Poland.

Commission's Art. 7 Comments to the Latvian NRA on the latter's review of the fixed call termination market

The European Commission, made the following comments, in its decision, to RTT, on the latter's review of the fixed call termination market:

"Need for an appropriate price control obligation

The Commission notes that both the current and target level of termination rates in Lithuania remain high in comparison to the average prices reported in 2008 for the incumbent operators in the EU27. The Commission regrets therefore the new approach taken by RRT, i.e. to increase the annual price level for the intermediate steps of the previously imposed glide-path. The Commission consequently urges the regulator to reconsider its glide-path and to propose a steeper annual reduction resulting in rates that are closer to the EU average. It stresses that this would allow for a swifter convergence of fixed termination rates towards the efficient level and would help to avoid the need for sudden drops or unduly steep glide paths at the end of the transition period provided for in the Termination Rates Recommendation, according to which termination rates should be set at the level of efficient costs for all operators by 31 December 2012.



Access obligations proposed for TEO and alternative operators

The Commission notes that RRT proposes to amend the access obligation imposed on TEO, in particular by an additional provision according to which the incumbent cannot deny access or withdraw access that has already been granted to operators which apply termination rates not higher than those charged by the incumbent (in accordance with the price control obligation imposed by the regulator).
 

While acknowledging that the introduction of the above additional access obligation aimed at reinforcing the symmetry among operators, such as recommended in the Commission's Recommendation on Termination Rates, the Commission points out to RRT that remedies imposed under Article 16 of the Framework Directive in conjunction with Article 8 of the Access Directive should be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. In particular, an access obligation
should address the market failure identified in the analysed relevant market, i.e. the risk of market foreclosure. An access obligation is unilateral and unconditional in its nature, and should in principle not be made subject to conditions offered on markets other than the relevant market, in this case another termination market.
 

Against this background, the Commission invites RRT to explain in its final measure why it considers the said amendment to the access obligation for TEO to be based on the nature of the competition problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive and to review the scope and adjust the wording of the access obligation if appropriate.


The Commission further notes that RRT intends to impose on alternative operators an access obligation which is generally defined and less detailed than the access obligation imposed on TEO. In light of RRT's proposal not to impose nondiscrimination and transparency obligations, the Commission invites RRT to extend the scope of the access obligation imposed on alternative operators in order to ensure that the termination services are provided on fair and equal conditions and potential competition problems relating to technical conditions of access are sufficiently addressed. Alternatively RRT may consider imposing a non-discrimination and transparency obligation also on alternative operators."

Friday, 27 April 2012

Commission's Art. 7 Comments to UKE on the latter's amendments to the wholesale leased lines RO

The European Commission had no comments to make in its decision, to UKE on the latter's notification of amendments as regards the Reference Offer concerning the provision of wholesale leased lines.

Commission moves Polish WBA market review to phase II - UPDATE

The European Commission, has decided to open phase II, under the new art. 7a, in relation to UKE's notified market review of the wholesale broadband access market, since the NRA's review, provides for absence of cost - orientation in NGNs and differentiates remedies between regions even though one geographic relevant market has been identified.

UPDATE (08/06/2012): BEREC's Opinion made available.

Commission consults on the reduction of the cost of rolling out high speed internet

"...the European Commission is seeking views on how to cut the costs of setting up new networks for high speed internet in the EU. In particular, the Commission wants to explore how to reduce the costs associated with civil engineering, such as the digging up of roads to lay down fibre, and which can account for as much as 80% of the total cost. The Commission believes it could cut the cost of broadband investments by a quarter. Input is sought from all interested public and private parties including telecoms and utility companies for instance, investors, public authorities and consumers" (see the press release).

ComReg issues draft 2012 - 2014 Strategy Statement

The Irish NRA has issued its draft 2012 - 2014 Strategy Statement and launched respectively its consultation.

OPTA issues Annual Report

The Dutch NRA has issued its Annual Report.

FCC launches officially Connect America Fund

"The Federal Communications Commission today officially launched the new ‘Connect America Fund’ (CAF), which was recently created as part of once-in-a-generation reform of the Universal Service Fund (USF)." (see the FCC's press release and related page).

Thursday, 26 April 2012

Commission's Art. 7 Comments to the Slovakian NRA on the latter's review of the WPNIA market

The European Commission mad ethe following comments, in its decision, to TÚSR, on the latter's review of the wholesale physical network infrastrucure access market:

"Transitory nature of virtual unbundled products
 

The TÚSR limits its access remedy in the G-PON fibre network architecture to VULA. The Commission points out that according to Recital 21 of the NGA Recommendation NRAs should be able to adopt measures for a transitional period mandating alternative access products which offer the nearest equivalent constituting a substitute to physical unbundling, provided that these are accompanied by the most appropriate safeguards to ensure equivalence of access and effective competition. Hence, while VULA can be implemented as a transitional measure it should be replaced by fibre unbundling as soon as it is technically and economically feasible, or possibly continue to be required in addition to full fibre unbundling. It is on this basis that the Commission invites the TÚSR to reassess the proposed access remedies as soon as the technology enabling fibre unbundling (e.g. WDM) is available.


Need to ensure that divergent regulatory approaches to non-discrimination
obligations do not create a barrier to the internal market

 

The Commission welcomes the fact that the TÚSR proposes to impose a price control remedy on a cost-oriented basis, on all forms of access, and co-location. However, the Commission underlines that proper enforcement of the non-discrimination remedy is important to prevent any potential non-price related discriminatory behaviour of the incumbent operator. In view of the work currently undertaken by the Commission on the draft Recommendation on the application of a non-discrimination obligation, the Commission invites the TÚSR to review the details of the nondiscrimination remedy once the Recommendation is published."

BEREC's Input and Opinion on Universal Service

BEREC made available its Opinion on the European Commission’s Communication on Universal Service in e-communications, abstracts of which read as follows:

"42. BEREC notes that any further guidance with regard to universal service should not go further than the fundamental principles of the European Regulatory Framework. The Regulatory Framework applies the principle of subsidiarity to considerations on universal service and this should be respected when guidance on the application of the USD is provided.
 

43. In the event that all principles included in the Communication were to be specified by a Recommendation, BEREC believes that this would create valid concerns regarding the potential impact on legal certainty. BEREC believes that such a Recommendation would then risk conflict with the USD and could impose, in practice, restrictions on the transposition or application of the USD by Member States.


...


45. In the given context, BEREC considers that the wording of the Communication is more suitable for the purpose of providing guidance than that used previously in the withdrawn Draft Recommendation, since it better reflects the principle of subsidiarity.
 

46. BEREC welcomes the fact that the Communication refers to the need for an ex ante analysis at Member State level when considering the requirement to define the network connection permitting functional internet access at broadband speeds. However, BEREC would welcome a clarification that Member States need to specify a data rate for functional internet access and carry out an assessment thereof, only when a Member State is considering the inclusion of broadband connections in USO. When conducting this assessment, Member States should take particular account of national circumstances.
 

47. The 50/80 rule may not be in accordance with the USD and could have important economic implications across Member States. It does not take into account the dynamic aspects of the broadband market and introduces unnecessary rigidity which may interfere with the required flexibility on national level.
 

48. In the light of the USD, Member States should be allowed to set a reasonable designation period that would allow for the recovery of investments and not hinder market developments. In doing so, the (incremental) level of coverage to be achieved and the (additional) investment expenditures to be undertaken at the time of designation as well as other relevant factors should be taken into account.
 

49. BEREC agrees that the procedure for establishing the net cost of USO should be set in advance of any designation process. However, BEREC considers that the sequencing of the determination of the net costs of USO should be left to the discretion of the Member States in accordance with Articles 12 and 13 of the USD.


...


51. BEREC agrees with the possibility of setting a de minimis threshold for contributions to the universal service fund in order to safeguard competition and reduce market distortions. However, BEREC considers that it important to take into account specific national social and economic conditions. This could not be done when such a limit is determined at European Union level.
 

52. Capping contributions to the universal service fund (e.g. within a range from 0.40% to
0.65% of annual turnover) would limit the policy decisions of Member States in relation to the financing of USO, which, from the USD, is clearly a matter of national competence. Furthermore, the model underlying the calculation of the caps needs to be refined and the results would require regular updating in order to account for market developments. The suggested caps may therefore be unsustainable.
"

BEREC/RSPG WG issues Report on the economic and social value of radio spectrum for certain services with respect to the frequency assignment procedures

Join BEREC/RSPG Working Group on Competition Issues has issued its Report on exploring the economic and social value of radio spectrum for certain electronic communications services with respect to the frequency assignment procedures.

Portugal switches off analogue television

"A public session is being held today, 26 April, to mark Portugal's definitive transition to digital terrestrial television (DTT), as the third and final phase of the plan for the switch off of analogue television transmissions (switch off plan) is concluded.

The ceremony is being held at 11.45 am at ANACOM's office in Porto and will be attended by ANACOM's Chairman, José Amado da Silva, the Portuguese Deputy and Parliamentary Affairs Minister, Miguel Relvas, and Chief Executive Officer of Portugal Telecom, Zeinal Bava, alongside other dignitaries.

Meanwhile, by determination of 23 March, ANACOM has approved a subsidy to be made available where installations require adaptation so that they are capable of digital television reception via terrestrial (DTT) or by satellite (DTH).  The subsidy is distributed by PT Comunicações and applications to receive it must be submitted no later than 31 August 2012.  This subsidy can be combined with the subsidy available for the acquisition of DTT reception equipment." (see ANACOM's press release).

BIS consults on private actions in competition law

The UK Govenrment's Department of Business, Innovation and Skills, has launched its consultation seeking "views on reforms to empower consumers and businesses to challenge anti-competitive behaviour.

...

The core reforms considered in this consultation are:
  • Allowing the Competition Appeal Tribunal (CAT) to hear more kinds of competition cases and granting it additional powers to allow SMEs to quickly and cheaply challenge behaviour that is restricting their ability to grow.
  • Introducing an opt-out collective actions regime for competition law, which would enable consumers and businesses to collectively bring a case to obtain redress for shared losses.
  • Promoting Alternative Dispute Resolution (ADR) to ensure that the courts are the option of last resort.
  • Ensuring private actions complement the public enforcement regime, in particular by protecting the incentives provided for companies to whistle-blow on cartels" (see BIS' related page).

Finland close to auctioning the 800 MHz frequency band for 4G networks

"Preparations are underway for the auctioning of the 800 MHz frequency band allocated to 4G networks. The Ministry of Transport and Communications has sent out for comments a draft act on spectrum auction. The purpose is to organise the auction earlier than originally planned. According to the proposal, the process would be launched during 2012: following entry into force of the act, licences would be announced open for application, and the auction would be held in early 2013.

'The licence terms and conditions together with the schedule set forth in the draft mean that by 2019, 4G networks will be available to practically everyone in mainland Finland,' Minister of Housing and Communications Krista Kiuru said.

According to Minister Kiuru, the fourth-generation mobile networks now being created will truly enable wireless use of Internet services in all parts of the country. 4G networks are currently available only in the largest urban areas. Objectives of the auction include extending the availability of mobile broadband, especially in sparsely-populated areas

The 800 MHz frequency band to be auctioned is cost-effective. A single base station can cover a geographical area at least five times larger than that covered by a base station in the 2.6 GHz band auctioned in 2009. The coverage of an 800 MHz base station is also greater than that of the broadband base stations in the 900 MHz band" (see the Ministry's press release).

Austrian NRA postpones frequency assignment procedure for 800/900/1800 MHz bands

"On September 19, 2011, the Telekom-Control-Kommission (TKK) adopted a preliminary schedule for the joint assignment of frequencies in the 800, 900 and 1800 MHz bands. According to the original plan, the tender documentation was to be published in April 2012, and the auction was slated for September 2012. The TKK has completed all preparatory activities and could therefore carry out the assignment procedure (as originally planned) at any time.

However, in its session on April 23, 2012, the TKK decided to postpone the invitation to tender due to the planned takeover of the network operator Orange. Before making this decision, the TKK carefully weighed the potential negative effects on competition and the risks to the assignment procedure which would result from adhering to the original schedule against the delayed nationwide introduction of LTE due to the postponement.

As H3G’s planned takeover of Orange and A1’s planned takeover of the YESSS! mobile network directly involve three of Austria’s four active mobile operators, putting the frequencies out to tender at the present time would probably lead to the disqualification of at least one of the companies involved in each takeover. This would violate a key principle of the procedure, that is, the need to ensure sustainable competition by allocating frequencies to operators which are independent in terms of competition. At present, the TKK cannot judge whether or not the merger will be approved.

Key objective in frequency assignments: Safeguarding competition

Mobile communications markets involve high or even insurmountable barriers to market entry. In general, operators can only enter the market if they are assigned frequencies. On such a market, a reduction from four to three operators may have negative effects on competition. Against this backdrop, the early disqualification of a potential mobile operator from the assignment procedure would run counter to the objective of ensuring sustainable competition. Moreover, the TKK wishes to retain the possibility of reviewing whether the approval of these mergers might require adaptations in the terms of the tender procedure and the terms of frequency usage. As a result, the TKK has decided to diverge from the original schedule.

The TKK is fully aware that postponing the assignment procedure will bring about delays in the introduction of LTE, especially in rural areas; at the same time, the authority is of the opinion that the economic disadvantages arising from a minor delay in the frequency assignment procedure will be less severe than the disadvantages that would result from a potential reduction of competition.

TKK keeps all options open in case of extended delays caused by merging companies

The TKK cannot currently predict how long the approval procedures for the planned acquisition of Orange will last. Excessively long procedures may lead to excessive delays in the assignment procedure and thus also to a change in the TKK’s assessment. The actual duration of the delay will also be determined by the decisions of the operators involved, among other factors. Due to the current uncertainty with regard to the duration of the merger procedures, the TKK currently reserves the right to launch the assignment procedures at any time" (see the press release).

Commission sends Reasoned Opinion to Greece for OTE's golden shares

"The European Commission has today acted to ensure that Greece complies with its obligations to implement EU rules on free movement of capital and the right of establishment (Articles 63 and 49 of the Treaty on the Functioning of the EU-TFEU). The non-compliance with EU law results from the application of a State measure, adopted in the context of Deutsche Telekom's (DT) participation in the Hellenic Telecommunication Organisation (OTE) and granting special rights (“golden share”) to the Greek State. The Commission's request to Greece takes the form of a reasoned opinion. If the national authorities do not reply satisfactorily within two months, the Commission may refer the matter to the Court of Justice of the European Union.

Greece and Deutsche Telekom (DT) entered into a share purchase agreement (SPA) for 3.03% of the Hellenic Telecommunication Organisation's (OTE) shares and a Shareholders' Agreement (SA). Upon completion of the SPA, Greece and DT each held 25% plus one of OTE shares. On 11 July 2008 the aforementioned agreements were ratified by national law (where it was explicitly stipulated that the agreements take the effect of a law).

The Commission contests the provisions of the above-mentioned law that:
  • introduces special rights for the State such as: the possibility for the State, even as a minority shareholder, to appoint half of the members on OTE governing bodies,
  • includes a wide range of veto rights on corporate and business matters such as a company's dissolution or merger, transfer or conversion of a strategic company's assets, changes in a company's nationality or capital,
  • requires prior approval by the Greek authorities for the transfer of OTE shares by DT and a change of control clause (which stipulates that, in case the control in DT changes and the person acquiring the control does not meet the requirements set out in national law, Greece has the right to require DT to sell back all OTE shares it held).
    The Commission considers that the national law enables the Greek Government to participate in OTE’s governing bodies in a more significant manner than its shareholder status would normally allow. Therefore, investors, other than the Greek State and DT, might be dissuaded from increasing their investment in OTE.
Consequently, these provisions are considered to be incompatible with the Treaty freedoms on capital movement and establishment, Articles 63 and 49 TFEU respectively" (see the press release).

Commission requests several Member States to traspose eMoney Directive

The European Commission, has sent several Member States, Reasoned Opinons, requesting trasposition of the eMoney Directive.

"Belgium, Spain, France, Cyprus, Poland and Portugal have been asked to notify to the European Commission within the next two months the measures they are taking to update their national legislation in conformity with the latest Directive on e-money. The Directive aims at facilitating market entry, as well as at the taking up and pursuit of the business of electronic money issuance. These rules, including their prudential dimension, are tailored to the specificities of electronic money activities and markets" (see the press release).

Commission investigates Spanish compensation scheme in favour of broadcasters for their parallel broadcasting costs

"The European Commission has opened an in-depth investigation to examine whether a Spanish plan to compensate digital terrestrial broadcasters for the extra costs of parallel broadcasting, while services are re-allocated to another frequency to free the digital dividend, is in line with EU state aid rules. The Commission will investigate in particular whether the measure is proportionate and necessary. At this stage, the Commission also has concerns that the measure may favour terrestrial broadcasters over other available technologies. The opening of an in-depth investigation gives interested parties the possibility to comment on the proposed measure and increases legal certainty for the beneficiaries of aid. It does not prejudge the outcome of the investigation. At the same time, the Commission has approved aid to enable certain households to continue receiving free-to-air channels after the reallocation of frequencies.

...

In Spain, broadcasting services need to be relocated, to free band space for the provision of enhanced electronic communication services. To ensure a continuity of broadcasting services, Spain requires broadcasters to send simultaneously on both frequencies for a transitional period of 6-24 months, while citizens adapt their reception infrastructure. This triggers extra costs for the broadcasters concerned. Spain notified a plan to compensate broadcasters for these extra costs.

At this stage, the Commission has not enough information, to determine whether the measure is necessary and proportionate. Moreover, the Commission has concerns that the measure could favour terrestrial broadcasting to the detriment of other technologies, such as satellite transmission, in breach of the principle of technological neutrality, which prescribes an equal treatment of all transmission platforms, independently of the technology used. Indeed, Spain proposes to reallocate only to digital terrestrial frequencies, without considering alternative platforms, which would also be available and suitable to free the digital dividend.

Spain also notified a scheme to support multi-household buildings for investments necessary to maintain the reception of free-to-air TV channels after the reallocation of frequencies. The Commission found that support was available independently from the transmission platform or technologies used and complied with the principle of technological neutrality. The Commission has therefore approved the measure" (see the full press release).

CJEU rules in DR and TV2 Danmark case

The Court's operative part of its judgment in case C-510-10, reads as follows:

"1. The expression ‘by means of their own facilities’ in Article 5(2)(d) 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 must be given an independent and uniform interpretation within the framework of European Union law.

2. Article 5(2)(d) of Directive 2001/29, read in the light of recital 41 in the preamble to that directive, must be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of any third party acting on behalf of or under the responsibility of that organisation.

3. For the purposes of ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29 in respect of ephemeral recordings, it is for the national court to assess whether, in the circumstances of the dispute in the main proceedings, that party may be regarded as acting specifically ‘on behalf of’ the broadcasting organisation or, at the very least, ‘under the responsibility’ of that organisation. As regards whether that party may be regarded as acting ‘under the responsibility’ of the broadcasting organisation, it is essential that, vis-à-vis other persons, among others the authors who may be harmed by an unlawful recording of their works, the broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of the third party, such as a legally independent external television production company, connected with the recording in question, as if the broadcasting organisation had itself carried out those acts and made those omissions."

CJEU's decision in Invitel case

The Court's operative part of its decision in case C-472/10, reads as follows:

" 1. It is for the national court, ruling on an action for an injunction, brought in the public interest and on behalf of consumers by a body appointed by national law, to assess, with regard to Article 3(1) and (3) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, the unfair nature of a term included in the general business conditions of consumer contracts by which a seller or supplier provides for a unilateral amendment of fees connected with the service to be provided, without setting out clearly the method of fixing those fees or specifying a valid reason for that amendment. As part of this assessment, the national court must determine, inter alia, whether, in light of all the terms appearing in the general business conditions of consumer contracts which include the contested term, and in the light of the national legislation setting out rights and obligations which could supplement those provided by the general business conditions at issue, the reasons for, or the method of, the amendment of the fees connected with the service to be provided are set out in plain, intelligible language and, as the case may be, whether consumers have a right to terminate the contract.

2. Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) and (2) thereof, must be interpreted as meaning that:

– it does not preclude the declaration of invalidity of an unfair term included in the standard terms of consumer contracts in an action for an injunction, provided for in Article 7 of that directive, brought against a seller or supplier in the public interest, and on behalf of consumers, by a body appointed by national legislation from producing, in accordance with that legislation, effects with regard to all consumers who concluded with the seller or supplier concerned a contract to which the same general business conditions apply, including with regard to those consumers who were not party to the injunction proceedings;

– where the unfair nature of a term in the general business conditions has been acknowledged in such proceedings, national courts are required, of their own motion, and also with regard to the future, to draw all the consequences which are provided by national law in order to ensure that consumers who have concluded a contract with the seller or supplier to which those general business conditions apply will not be bound by that term."

CJEU'S ruling in Cyprus rights of way case

The Court, ruled (in french or greek) in case C-125/09, that Cyprus failed to fulfil its obligations, in view of the fact that it had not put in place a transparent procedural framework as regards the award of rights of way, which does not provide for discrimination amongst operators and offers timely access.

Wednesday, 25 April 2012

AG Bot delivers Opinion in UsedSoft case

AG Bot has delivered his Opinon in case C-128/11, the conlcusions of which read as follows:

"(1) Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right to distribute the copy of a computer program is exhausted if the rightholder, who allowed that copy to be downloaded from the internet to a data carrier, also granted, for consideration, a right to use that copy for an unlimited period of time

After all, a sale within the meaning of that provision is constituted by any act by which a copy of a computer program is made available in the European Union, in any form and by any means, for the purpose of being used for an unlimited period and in return for a lump-sum payment.

(2) Articles 4(2) and 5(1) of Directive 2009/24 must be interpreted as meaning that, in the event of resale of the right to use the copy of a computer program, the second acquirer cannot rely on exhaustion of the right to distribute that copy in order to reproduce the program by creating a new copy, even if the first acquirer has erased his copy or no longer uses it."

Tuesday, 24 April 2012

EDPS issues Opinion on ACTA

"...the European Data Protection Supervisor (EDPS) adopted his Opinion on the proposal for a Council Decision on the conclusion of the Anti-Counterfeiting Trade Agreement (ACTA). The Opinion shows that the lack of precision of the Agreement about the measures to be deployed to tackle infringements of intellectual property rights ('IP rights') on the Internet may have unacceptable side effects on fundamental rights of individuals, if they are not implemented properly. It underlines that many of the measures to strengthen IP enforcement online could involve the large scale monitoring of users' behaviour and of their electronic communications. These measures are highly intrusive to the private sphere of individuals, and should only be implemented if they are necessary and proportionate to the aim of enforcing IP rights. 

 ...

In his Opinion, the EDPS stresses in particular that: 

- measures that allow the indiscriminate or widespread monitoring of Internet users' behaviour, and/or electronic communications, in relation to trivial, small-scale, not for profit infringement would be disproportionate and in breach of Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and the Data Protection Directive; 

- many of the voluntary enforcement cooperation measures would entail a processing of personal data by ISPs which goes beyond what is allowed under EU law; 

- ACTA does not contain sufficient limitations and safeguards, such as effective judicial protection, due process, the principle of the presumption of innocence, and the right to privacy and data protection" (see the full press release).

Friday, 20 April 2012

Cypriot NRA consults on draft Decree concerning conumer protection in the electronic communications sector

Cypriot NRA launched its consultation on its draft Decree concerning conumer protection in the electronic communications sector (in greek).

Vodafone pays 951.000,00 euros for overcharging of prepay mobile customers case

"Vodafone has today agreed to pay ComReg €951,000 following an investigation by ComReg into a discrepancy between prices published by Vodafone for calls to numbers in the 1520, 1580 and 1590 number ranges and the actual charges applied to customers" (see ComReg's Information Notice).

CJEU delivers decision in Wintersteiger case

The Court has delivered its judgement on case C-523/10, the operative part of which reads as follows:

"Article 5(3) 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 an action relating to infringement of a trade mark registered in a Member State because of the use, by an advertiser, of a keyword identical to that trade mark on a search engine website operating under a country-specific top-level domain of another Member State may be brought before either the courts of the Member State in which the trade mark is registered or the courts of the Member State of the place of establishment of the advertiser."

CJEU rules in Bronnier Audio case

The Court delivered its decision in Case C-461/10, the operative part of which reads as follows:

"Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC must be interpreted as not precluding the application of national legislation based on Article 8 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement, since that legislation does not fall within the material scope of Directive 2006/24;

It is irrelevant to the main proceedings that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired;

Directives 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) and 2004/48 must be interpreted as not precluding national legislation such as that at issue in the main proceedings insofar as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.
"

EMI's music publishing business acquisition by Sony and Mubadala approved by the Commission with concessions

"The European Commission has cleared under the EU Merger Regulation the proposed acquisition of joint control over the music publishing business of EMI Group, a British company, by Sony Corporation of the USA and Mubadala Development Company PJSC, an investment fund based in the United Arab Emirates. The decision is conditional upon the divestiture of the worldwide publishing rights to four catalogues and the musical works of 12 contemporary authors. In light of these commitments, the Commission concluded that the transaction would not raise competition concerns" (see the press release).

Thursday, 19 April 2012

Commission's Art. 7 Comments to OPTA on the latter's third review of the telephony market and repair decision on retail fixed business telephony

The European Commission had no comments to make, in its decision, to OPTA on the latter's third review of the telephony market, which provides as follows:

"OPTA concludes that the three-criteria test is met with regards to the wholesale markets for single, dual and multiple calls.

OPTA considers that, in the presence of wholesale regulation (i.e. carrier (-pre)selection (C(P)S) and wholesale line rental (WLR) as well as significant pressure from voice over broadband (VoB) services, the retail market for single calls tends to effective competition, hence the second criterion of the three-criteria test is not met.

OPTA concludes that the retail dual and multiple calls markets instead do meet the three-criteria test, making them susceptible to ex-ante regulation
".

The Commission, did make comments on the other hand, in its decision, as regards OPTA's repair decision of the retail fixed telephony market for business customers, and which read as follows:

"Need for an updated three criteria test in the final repair decision

The Commission notes that with the present draft measure, OPTA executes the national Court's decision to assess whether the retail obligations imposed on KPN in the fixed telephony decision of 2005 should be continued after the date of withdrawal of retail fixed telephony obligations (with regard to access and voice calls for business customers) as set out in the decision of 2008, i.e. until 1 January 2010. The Court ruled that OPTA could not discontinue, in the regulatory period 2009-2011, the regulation imposed in 2005 solely on the basis of the three criteria test and despite having found an operator with significant market power. The Court found that OPTA had not sufficiently justified that the market would tend to effective competition at the end of the regulatory period or shortly thereafter.

OPTA considers that, in order to execute the Court's ruling, it has no obligation to provide further market based information. However, OPTA provides the general lines of the actual market developments in the period 2009-2011, which are used also in its third round fixed telephony market analysis notified to and assessed by the Commission in parallel under case NL/2012/1306, to underpin its finding that the market is not effectively competitive and that its finding of SMP on the relevant market as identified in the 2008 fixed telephony decision is not altered in essence.

The Commission notes, however, that OPTA does not provide the revised three criteria test in its draft repair decision. OPTA only provided it in answer to the Commission's request for information. The Commission therefore invites OPTA to include the revised assessment of the three criteria in the final version of its repair decision. In the absence of evidence that the three criteria are fulfilled and therefore that the identified market, which is not listed as such in the Recommendation on Relevant Markets, is susceptible to ex ante regulation, OPTA's repair decision would still be based on its previous conclusion, namely that the three criteria are not met and the relevant market is therefore not susceptible to ex ante regulation as of 1 January 2010.
"

Portuguese Government consults on the universal service compensation fund

The Portuguese Government launched its consultation on the draft decree - law regarding the universal service compensation fund. "The fund in question is to be used to compensate the costs incurred by the provider(s) designated under the tender, pursuant to paragraph 3 of article 99 of Law no. 5/2004 of 10 February (Electronic Communications Law), as well as the costs as are incurred by the current universal service provider and which are eligible for compensation under the terms set out by ANACOM in the determination approved on this subject in 2011" (see the NRA's press release).

Tuesday, 17 April 2012

KPN backs down from CAIW take over

"Dutch telecom company KPN and CIF, owner of Dutch cable company CAIW, have withdrawn their license application for the acquisition of CAIW by KPN. Both companies have informed the Netherlands Competition Authority (NMa) of their decision. KPN and CIF came to this decision after the NMa had indicated that it, even after an additional investigation, continued to have concerns about the strong position KPN would secure in CAIW’s catchment area. The NMa’s concerns primarily related to reduced consumer choices for television services, internet access and landline telephony services" (see the NCA's full press release).

Commission opens in-depth investigation in m-payments jv

"The European Commission has opened an in-depth investigation under the EU Merger Regulation into the proposed creation of a joint venture in the UK between Vodafone, Telefónica and Everything Everywhere in the field of mobile commerce. The Commission’s preliminary investigation indicated potential competition concerns in the nascent markets of mobile payment applications supply (so-called "mobile wallets"), mobile advertising and related data analytics services, where the joint venture may have very high market shares. The opening of an in-depth inquiry does not prejudge the final result of the investigation" (see the full press release).

Arcep consults on increased use of radio-relay systems and associated spectrum requirements

The French NRA's consultation was launched seeking views "on how the use of radio-relay systems is likely to evolve in future, and associated spectrum requirements along with it - particularly in view of broadband and superfast broadband electronic communications network rollouts.

The consultation will enable ARCEP to prepare for possible changes to regulation governing the terms of use for the frequencies, in accordance with the different users' spectrum requirements
" (see the press release).

Arcep's MCV decision receives Ministerial approval and enters into effect

The French NRA's decision governing the provision of mobile communication services on board vessels was approved under a respective Ministerial decision and has thus entered into effect (see the NRA's press release).

Commission's Art. 7 Comments to OFCOM as regards the latter's modification of ISDN30 price control

The European Commission had no comments to make, in its decision, to OFCOM, as regards the latter's modification of the price control in ISDN30 services.

Commission objects Estonian NRA's proposed MTRs - Update

The European Commission entered phase II as regards the mobile termination rates proposed by the Estonian Competition Authority (see the press release).

Update (19/04/2012): Commission's Decision:

"...

In this particular case, the Commission observes that the termination rate for the first half of 2013 is set above the cost efficient level, and it is highly unlikely that this level will be achieved as of mid 2013. ECA's notification does not explain whether the proposed approach would allow achieving the regulatory objectives of Article 8 of the Framework Directive nor that it would promote the goals described in Article 13(2) of the Access Directive. Hence, the Commission has serious doubts that ECA's proposal can be considered appropriate within the meaning of Article 16(4) of the Framework Directive and justified in light of the objectives laid down in Article 8 of the Framework Directive, and, in particular, the objectives of promoting efficiency, competition and maximum user benefits pursuant to Article 8(2) of the Framework Directive and Article 13(2) of the Access Directive. The Commission also believes, at this stage, that the draft measure would create barriers to the internal market.
"

UPDATE (10/08/2012): Commission's Art. 7 Comments on the NRA's re-notified review:

"Need for an appropriate benchmarking methodology

At the outset, the Commission welcomes ECA's current proposal, which addresses most of the concerns expressed by the Commission with regards to ECA's previously notified draft measure. Especially, the Commission welcomes ECA's commitment to notify future MTRs by way of a general notification in line with Article 7(3) of the Framework Directive, as well as ECA's proposition to benchmark only against pure BU-LRIC MTRs only of EU Member States in order to set the termination rates in Estonia in line with Recommend 12 of the Termination Rates Recommendation.
 

However, the Commission points out that there are other Member States, such as Denmark, Italy, Portugal and Spain, which have implemented the pure BULRIC cost model and thus their MTRs should be taken into account when benchmarking. Secondly, the Commission further reiterates that rates used for benchmarking purposes should be the cost efficient target rates at the end of the respective glide paths in the chosen Member States, and not the intermediate rates. Such an approach has also been endorsed by BEREC. Contrary to this, when benchmarking against Hungarian MTRs, ECA has chosen a benchmark rate of 2.32c€/min which does not in fact represent a cost-efficient MTR that results from a costing model developed by the Hungarian NRA but an intermediate rate leading to the cost efficient MTR. As the Commission noted in its decision concerning case HU/2011/1225, MTRs set at the cost-efficient level have not yet been imposed in Hungary, but their imposition was only announced for January 2014, as it depends on the outcome of a new market analysis.
 

Further on, the Commission shares ECA's concern to base its decision on a reliable source. However, the Commission points out that there are other reliable and publicly available sources, such as final decisions adopted by NRAs, as well as Commission decisions concerning notifications made in accordance with Article 7 of the Framework Directive.

More generally, when setting the MTRs on the basis of benchmarking, the Commission is of the view that the NRA should, in order to comply with the Recommend 12 of the Termination Rates Recommendation, ensure that the target rate is not higher than the average of the cost-efficient target rates in those Member States having implemented the recommended pure BU-LRIC model.
 

Therefore, the NRA should (i) identify the Member States which have not only developed a pure BU-LRIC model, but have already adopted a decision which stipulates that the cost-efficient target rate will come into force on 1 January 2013 or, exceptionally, delays its introduction for a short period of time beyond this deadline and (ii) use the target rates resulting from the pure BU-LRIC models applied in the above specified Member States (and not the rates foreseen in the glide-path) to calculate the average of the cost efficient MTRs.
 

In addition to the BEREC Report, the information required for the above analysis should be taken from final decisions adopted by NRAs in their respective Member States. Further on, Commission Article 7 decisions concerning market 7 notifications, which very often contain a list of Member States having notified the pure BU-LRIC methodology, as well as their cost-efficient rates, might serve as a useful starting point in order to determine which NRAs have notified pure BULRIC
rates. These tables (such as the one below) might provide a more updated list of Member States and their rates than the BEREC Report which is published every six months. However, the Commission points out that the NRAs would still need to verify the finally adopted measures, to determine whether they indeed correspond to the notified draft decisions.
"

It follows a Table of Member States which have notified a pure BU-LRIC methodology for MTRs to
the European Commission under Article 7 (as of 31 July 2012) ...

"Once the NRA has calculated the pure BU-LRIC rate, it should then determine the appropriate glide-path, resulting in the pure BU-LRIC target rate as of 1 January.
 

The Commission therefore asks ECA to take full account of the Termination Rates Recommendation and to consider setting cost-oriented termination rates already as of 1 January 2013 in order to bring more quickly to Estonian and EU end-users the full benefits of low MTRs in Estonia.
 

In summary, the Commission asks ECA to (i) benchmark against all pure BULRIC MTRs currently implemented across the EU, taking account of the target rates of the respective glide paths, (ii) verify whether the benchmark rates actually correspond to the pure BU-LRIC rates adopted by the NRAs by way of final decisions, (iii) in case deviations are identified, correct the benchmark rates and adopt in its final decision an amended benchmarking methodology as described above and (iv) modify its glide-path in order to set the MTRs at the level of the pure BU-LRIC rate already as of 1 January 2013, as foreseen in the Termination Rates Recommendation."

Commission opens phase II for ARCEP's proposed assymetric MTRs - UPDATE

The French NRA's proposed set of higher termination rates in favour of the new mobile operators, namely Free Mobile, Lycamobile and Oméa Telécom, forced, allegedly, the European Commission to move to phase II (see the press release).

Update (20/04/2012): Commission's Decision:

"In this particular case, the Commission observes that ARCEP's notification does not provide adequate justification of why the proposed approach for the price remedy on the termination service provided by Free Mobile, Lycamobile and Oméa Télécom meets the policy objectives and regulatory principles enshrined in Article 8 of the Framework Directive, and can be considered to be in line with Articles 13(2) and 8(4) of the Access Directive. Hence, the Commission has serious doubts that ARCEP's proposal on termination rates can be considered appropriate in the given termination markets within the meaning of Article 16(4) of the Framework Directive and justified in light of the objectives laid down in Article 8 of the Framework Directive, and in particular the objectives of promoting competition and user benefits and ensuring that there is no distortion or restriction of competition in the electronic communications sector, pursuant to Article 8(2) of the Framework Directive and believes, at this stage, that the draft measures would create barriers to the internal market."

Commission releases 2nd report on the application of the EU Charter

The European Commission has released its 2nd report on the application of the EU charter of fundamental rights (see the Commission's press release).

Thursday, 12 April 2012

Spanish NRA renotifies MTRs to the Commission

CMT has renotified its proposed MTRs glidepath (see summary notification). It shall be reminded that the case entered phase II under Art. 7a (see older post). It shall also be noted that CMT had changed its glidepath since submission already once (see here, in spanish). It seems lastly, that even in the renotified glidepath, the 2009 Termination Rates Recommendations is not fully satisfied.

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

OFCOM decided to waive BT’s price notification requirements for charges in relation to the transfer and migration of legacy to new Ethernet services (see OFCOM's related page).

Commission consults on wirelessly connected devices - the "Internet of Things"

"Realising the enormous economic and societal potential of the IoT requires a level playing field where all players can compete on an equal footing, without gate keepers and locked-in users. Its societal acceptance requires the definition of an ethical and legal framework, supported by technology and providing people with control and security. Through the consultation, the Commission is seeking views on privacy, safety and security, security of critical IoT supported infrastructure, ethics, interoperability, governance and standards. The results of the consultation will feed into the Commission's Recommendation on the IoT, which will be presented by summer 2013. Boosting the IoT is a priority for the Digital Agenda for Europe" (see the Commission's press release).

DoJ proceeds to litigation against Apple and two other publishers and settles with three in E-books case

"The Department of Justice announced today that it has reached a settlement with three of the largest book publishers in the United States– Hachette Book Group (USA), HarperCollins Publishers L.L.C. and Simon & Schuster Inc.–and will continue to litigate against Apple Inc. and two other publishers–Holtzbrinck Publishers LLC, which does business as Macmillan, and Penguin Group (USA)–for conspiring to end e-book retailers' freedom to compete on price, take control of pricing from e-book retailers and substantially increase the prices that consumers pay for e-books. The department said that the publishers prevented retail price competition resulting in consumers paying millions of dollars more for their e-books" (see DoJ's press release and related page).

ECHR finds French legal action against Bouygues Telecom fair

"In its decision in the case of Société Bouygues Telecom v. France (application no. 2324/08), the European Court of Human Rights has unanimously declared the application inadmissible.

The decision is final.

The case concerned the proceedings which resulted in the company Bouygues Telecom being ordered to pay a fine of 58 million euros for entering into an anti-competitive agreement on the mobile telephone market.

The Court considered, in particular, that the State had acted with the requisite diligence in ensuring the applicant company’s right to be presumed innocent, that there had been no breach of the equality-of-arms principle and that the absence of a public hearing before the Competition Commission had been compensated for by the fact that the case had been reviewed by two courts (the Court of Appeal and the Court of Cassation)
" (see the ECHR's press release).

New Greek telecoms and trademark laws voted in Greek Parliament

The new Greek electronic communications law (see related page, in greek), delivering amongst other the trasposition of the telecoms package, as well as another law, encompassing amongst other the provisions of the new trademarks regime (see related page, in greek), were voted in the Greek parliament and will soon enter into effect. It shall be mentioned that the latter law, provides also for more severe punishment, when the Competition Authority's personnel, is been obstructed from carrying its inspections (administrative and penal wise).

French State consults on digital radio mode

The French Ministry of Economy, Finance and Industry has launched a consultation concerning the change of its digital radio framework into DAB+ (see related page, in french).

French State consults on universal service operator designation

French Ministry of Economy, Finance and Industry has launched its consultation on the designation of the universal service operator as regards fixed telephony (see related page, in french).

Spectrum refarming decision of the Greek NRA published

Following the auctions in 900 and 1800 MHz bands, the EETT's decision on spectrum refarming has been published in the National Gazzette (in greek).

Greek NRA consults on mobile call termination

EETT has launched its consultation (in greek) on its review of the mobile call termination market, providing for the reach of the 2009 Termination Rates Reccommendation's targets (see relevant page in greek and press release, in greek).

Thursday, 5 April 2012

Dutch DPA announces Google's compliance in WiFi data case

"Since 15 November 2011 the Dutch DPA has sent Google a number of requests for information in order to determine whether, with the selected measure of allowing people to add ‘_nomap’ to the network name of their WiFi router, Google has complied with its obligation to offer a free and effective opt-out possibility. Based on the information provided by Google in response to the requests for information the Dutch DPA concludes that Google has in fact complied with this obligation.

The Dutch DPA has also determined that Google has complied with the requirement to inform those involved, both online and off-line, about the processing of WiFi data and about the possibility of registering their refusal by means of an opt-out possibility. The Data Protection Authority has also determined that Google has complied with the requirement to irreversibly delete the network names (the SSIDs) and that Google has complied with the requirement to report the data processing to the Dutch DPA.
" (see the full press release).

ComReg issues decision on WBA price control further specifications and amendment to transparency obligation

ComReg has issued its decision as regards further specifications to the price control and amendment to transparency obligation in the wholesale broadband access market.

ComReg issues in final new PRS framework

The Irish NRA has issued its decision on the new PRS code of practice and the new Licensing Regulation for the provision of PRS.

OFCOM undertakes dispute on BT's termination charges

Everything Everywhere brings before OFCOM a dispute regarding BT's termination charges for 0844, 0843, 0871, 0872, 0873 and 090 number ranges (see related page).

OFCOM issues provisional conclusions and updates provisional determination on Ethernet charges disputes

Ofcom issued its provisional conclusions on the dispute brough by Verizon, concerning the level of BT’s charges for Wholesale Extension Services (“WES”)(see related page).

OFCOM has update with new data its provisional determination of a dispute between Cable & Wireless and BT about BTs charges for Ethernet services and specifically about BT's charges for Wholesale Extension Services (WES) and Backhaul Extension Services (BES) (see related page).

Commission staff working document on the implementation of national broadband plans

The Commission has made public its working document on the implementation of national broadband plans.

German NRA prohibits for the time being DT's price model for VDSL bitstream access

"With a decision published today, the Bundesnetzagentur has prohibited Telekom Deutschland GmbH from selling VDSL bitstream access under a new price model for the time being. The company had informed the Bundesnetzagentur back in mid-January 2012 of its plans to introduce a price model known as the VDSL contingent model in addition to its current price model for VDSL IP bitstream access. In ex post control proceedings, the competent Ruling Chamber arrived at the preliminary conclusion that the model was considerably hampering the competitive opportunities of other companies without any objective justification.

The VDSL contingent model is characterized by parties wishing to have VDSL IP bitstream access book a certain contingent of bitstream access nationwide or at regional level by making a so-called upfront payment. With this booking, subscribers obtain the right to lease VDSL IP bitstream access for the next eleven years within the framework of the agreed contingent subject to a certain monthly fee. Owing to the overall mechanism which means the upfront payment is distributed across the access lines actually leased in terms of cost accounting, the more use is made of the agreed contingent, the lower the price becomes.

The mechanism effectively offers a volume-based discount for use of an existing infrastructure that in conjunction with the term of the lease renders it unattractive for competitors to develop new infrastructures such as the optical fibre loop on the last mile. Infrastructure competition is, however, an important prerequisite for the development of sustainable and self-supporting competition on end consumer markets in terms of pricing, quality, service and diversity of services available.

The Bundesnetzagentur holds the view that the new price model cannot be justified by special investment-related risks or capacity utilisation risks. This is not a model that is used to sell broadband access on the basis of newly-developed, more high-speed broadband networks but to sell connections in an existing infrastructure in which investments began in 2006 and have meanwhile been almost completed.

That is why the Bundesnetzagentur explicitly stressed once again in its decision that it is open to cooperation and risk-sharing models for the development and sale of new next generation broadband networks, for instance, optical fibre on the last mile. Today's decision will therefore not prejudice its regulatory assessment. In a statement issued, the Bundeskartellamt said that it shares the Bundesnetzagentur's competitive assessment of the VDSL contingent model.
" (see the full press release).

Wednesday, 4 April 2012

France Telecom proposes undertakings in pending peering and net neutrality case

FT has proposed to the French NCA, to provide with trasparent technical, operational and financial information of Orange's and Open Transit's connectivity arrangements and set up accordingly a monitoring process, to alleviate Cogents concerns that is been given differential treatment that may constitute margin squeeze (see the press release, in french).

Romanian regulator issues decision on number portability

ANCOM has issued its decision, after consulting with stakeholders, on number portability, under which portability will take place within 1 day (see press release).

Cypriot telecoms authority consults on the development of NGA

OCECPR has launched a consultation on the development of NGA in view of the respective objectives set out in the EU's Digital Agenda (see related page, in greek).

ComReg issues draft decision and consults further on NGA remedies

The Irish regulator issued its draft decision on NGA remedies and launched a further consultation on the said decision (see also a study prepared by Opera for ComReg on the pricing principles and methodologies in relation to eircom's NGA products).

Commission approves Toshiba's acquisition of some HDD assets of Western Digital

The said acquisition was approved in the context of Western Digital's commitments undertaken to get the green light for Hitachi's Storage Technologies acquisiton (see related older post on the case).

Tuesday, 3 April 2012

MCA consults on MTR

The Maltese NRA launched ist consultation on its interim review of wholesale mobile call termination rate (see related page).

Maltese NRA issues decision on the assignment of spectrum in the 3400 – 3800 MHz band

MCA issued its decision on the assignment of spectrum in the 3400 – 3800 MHz band. The summary of its decision reads as follows:

"* Spectrum will be assigned as individual 3.5 MHz paired channels.

* The interference mitigation techniques applied in the 3400 – 3800 MHz band will be as follows:

- For assignments in the 3400 – 3600 MHz sub-band, existing guard bands already included in the current active licences will be retained. Operators will be allowed to establish multilateral agreements to govern the utilisation of these guard bands.

- For assignments in the 3600 – 3800 MHz sub-band technical conditions aimed at minimising interference in line with 2008/411/EC will be adopted.

* Spectrum caps will be introduced at the Call for Expressions of Interest stage. An overall cap of twelve (12) 3.5 MHz-channels will be applied. This includes any already assigned rights of use.

* Rights of use will be granted for a ten (10) year term.

* Rollout and coverage obligations in the 3400 – 3800 MHz band will be as follows:

- Applicants successful in acquiring spectrum in the 3400 – 3600 MHz sub-band will be required to complete their nationwide network deployment within 2 years from the grant date.

- No nationwide coverage obligations for deployments in the 3600 – 3800 MHz sub-band will be applied. However, at application stage, applicants will be required to identify the areas where network deployment will be made.

* Sanctions including a ‘use it or lose it’ clause will be included in the licence.

* Rights of use will be service and technology neutral in line with 2008/411/EC.

...
" (see the related page).

OFCOM issues further determination on BT call termination charges dispute

"Ofcom has issued a further determination to give effect to the CAT’s Order dated 12 August 2011 (“the Order”) made in respect of case numbers 1151/3/3/10, 1168/3/3/10 and 1169/3/3/10. BT and Vodafone have failed to agree the payment due to BT for charges for calls to 080, 0845 and 0870 numbers under NCCNs 956, 985 and 986 in Period 1. On 2 April 2012 we therefore ordered, pursuant to paragraph 6(3) of the Order, the appropriate payment to be made by Vodafone to BT for these calls" (see related page).

Commission opens finally proceedings against Motorola

"The European Commission has opened two formal antitrust investigations against Motorola Mobility Inc. The Commission will assess whether Motorola has abusively, and in contravention of commitments it gave to standard setting organisations, used certain of its standard essential patents to distort competition in the Internal Market in breach of EU antitrust rules. The opening of proceedings means that the Commission will examine the cases as a matter of priority. It does not prejudge the outcome of the investigations.

Following complaints by Apple and Microsoft, the Commission will investigate, in particular, whether by seeking and enforcing injunctions against Apple's and Microsoft's flagship products such as iPhone, iPad, Windows and Xbox on the basis of patents it had declared essential to produce standard-compliant products, Motorola has failed to honour its irrevocable commitments made to standard setting organisations. In these commitments, Motorola engaged to license those standard-essential patents on fair, reasonable and non-discriminatory (FRAND) terms. The Commission will examine whether Motorola's behaviour amounts to an abuse of a dominant market position prohibited by Article 102 of the Treaty on the Functioning of the EU (TFEU).

In addition, the Commission will also assess the allegation by both Apple and Microsoft that Motorola offered unfair licensing conditions for its standard-essential patents in breach of Article 102 TFEU.
" (see the full press release).

ARCEP publishes decision on gathering information on the technical and pricing terms governing interconnection and routing

"Interconnection and routing markets, which fall under the Authority's purview, are vital elements in the Internet's technical and economic operations. Both are rapidly evolving markets and ones that involve sometimes complex relationships between Internet service providers (ISPs), providers of public online communication services (PPOCS) and technical intermediaries such as transit operators and content delivery networks (CDN).

In light of the information that is publicly available and ARCEP's early efforts in this arena, interconnection and routing markets do not appear to require the introduction of ex ante regulation at this stage. Nevertheless, only in-depth and regularly updated knowledge of these markets, and of the players' complex and ever-evolving practices, can ensure their proper technical and economic operation over the long term. This knowledge of the markets and the stakeholders must also prepare ARCEP to properly exercise its power to settle disputes between operators and PPOCS, as assigned to it by Law.

It is under these circumstances that today ARCEP is publishing a decision on gathering information on the technical and pricing terms governing interconnection and routing. The authority had already outlined the underlying principles of such a campaign in September 2010, in its proposals on Internet and network neutrality.

ARCEP will also address the issue of interconnection and routing between Internet companies in its report to Parliament on Internet and network neutrality, which will be subject to public consultation in the coming weeks, before being submitted to Parliament and the Government in early summer.
" (see the full press release).