Thursday, 31 May 2012

Germany referred to Court over non trasposition of the data retention directive while partially withdraws Swedish case and withdraws Austrian case

"More than two years after the national law transposing the EU Data Retention Directive was annulled by the German Federal Constitutional Court, Germany has still not complied with the Directive. As a result, today the Commission referred the country to the European Court of Justice, requesting it to impose financial penalties.

The Data Retention Directive makes it mandatory for telephone companies and Internet service providers to store telecommunications traffic and location data for law enforcement purposes. Ongoing delays in transposing the Directive into national law are likely to have a negative effect on the internal market for electronic communications and on the ability of police and justice authorities to detect, investigate and prosecute serious crime.

The German national law transposing the Directive was annulled by the German Federal Constitutional Court on 2 March 2010. Germany has been given a considerable amount of time to transpose the Directive into national law. Yet, even though none of the conclusions of the Courts' judgment preclude full transposition of the Directive in a way that complies with the national Constitution, no new legislation has been adopted since.

In October 2011, the Commission sent a reasoned opinion to Germany asking the authorities to remedy this breach of EU law .... On 26 March 2012, the Commission warned the country that it would request the Court to impose fines should the next step in the proceedings - a referral to the Court - be warranted.

Since then, German authorities have not indicated how and when they will adopt new legislation that fully complies with the Directive. The Commission has made clear that a system of data preservation ("quick freeze plus") as is currently being discussed in Germany would not amount to a full transposition of the Directive.

The Commission therefore decided to bring the case to Court, proposing to impose a penalty payment for each day after the Court ruling until the country ceases to be in breach of EU law (article 260.3 TFEU).

The Commission proposes the Court impose on Germany a daily penalty payment of € 315 036.54
Today, the Commission also formally decided to end the proceedings against Austria, which has notified all the measures fully transposing the Directive, and to make a partial withdrawal of the case against Sweden.

While Sweden has now fully transposed the Directive, the Court is still expected to rule on the case following last year's second referral, when the Commission requested both a lump sum and a penalty payment .... In accordance with its practice in cases where a Member State transposes a Directive at a moment in time where the infringement has already reached the stage of a second referral to the Court, the Commission decided to withdraw the request for a penalty payment while maintaining the request to condemn Sweden to pay a lump sum" (see full press release).

Belgium, Netherlands, Poland, Portugal, and Slovenia referred to Court for missing the deadline to transpose the Telecoms Package

"The European Commission has decided to refer five Member States - Belgium, The Netherlands, Poland, Portugal, and Slovenia - to the EU Court of Justice because they have still not implemented the revised EU telecoms rules into their national laws. The official deadline for doing so was 25 May 2011. The Commission has also suggested the Court impose a daily penalty payment on each Member State (see table below) which would be paid as from the date of the Court's ruling until full transposition of the rules into national law is notified" (see the press release).

BIPT decides on Belgacom's Alternative, to Access to Multicast Function, Reference Offer

The Belgian NRA has issued its decision on the incumbent's Reference Offer as regards the proposed alternative to its obligation to provide acces to mutlicast function (in french).

Wednesday, 30 May 2012

BEREC's and Commission's preliminary findings on traffic management and further net neutrality consultation papers

BEREC and the European Commission have released their report entailing their preliminary findings on traffic management.

BEREC launches as well three consultations pertaining to net neutrality, namely; one on QoS, one on IP Interconnection and one on differentiation practices (see press release  and an explanatory note on the consultattions overal framework too).

Tuesday, 29 May 2012

Greek Ministry consults on design of award process in the VHF Band II and L-band

The Greek Ministry of Infrastructure and Communications has launched its consultation on the consultant's report on the "key issues that will need to be taken into account in the design of the award process for analogue radio broadcasting licences and ... recommendations re the licensing of digital radio broadcasting in the VHF Band II and also the L-band" (see Ministry's press release, in greek and the consultant's report in english and greek).

EETT updates broadband speeds map

The Greek NRA has update its broadband speeds map in a move that will likely increase competition,  transparency and consumer protection in general (see EETT's press release as well, in greek).

Portuguese law on universal service compensation fund published - translation in english

Portuguese law on universal service compensation fund published - translation in english (see ANCOM's page).

Irish NRA commences multi-band spectrum award process

ComReg announced the launch of the multi-band spectrum award process (see the information memorandum and for all relative documents advise ComReg's press releases page). As the respective information notice provides:

"1 Overview

...

2. This auction is offering spectrum rights of use across these three critical bands - 800 MHz, 900 MHz and 1800 MHz for the period 2013 to 2030. The spectrum rights of use being auctioned, in particular the rights of use in the 800 MHz and 900 MHz bands, are highly suitable for advanced mobile services, due to their excellent propagation properties which allow for high quality services and wide area coverage plus improved in-building reception.
 

3. 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. Hence this award process is a vital step in allowing for the next generation of advanced mobile services to be made available for Irish consumers and businesses from next year.
 

...

5. The deadline date for the submission of completed Application Forms and the submission of deposits is Friday 20th July 2012.
 

6. To ensure the optimal use of these important spectrum bands, spectrum rights of use in these bands shall be subject to a minimum price of €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.

2 Features of award process


7. The main features of the award process are as follows:
- To accommodate the expiry dates of current GSM licence assignments, spectrum rights of use will be auctioned across two time periods, applicable to each of the three bands being auctioned. It is intended that 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.
- If ComReg receives bids for the exact quantity of spectrum that is available (or bids for less than the quantity of spectrum available), these bidders will acquire spectrum at the minimum price.

- If there is excess demand, and an auction is therefore required, 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;
- The second stage of the auction will be a single round of bidding during which winning bidders in the first stage may submit one or more bids, in order to be assigned specific frequencies within the bands in which they have won generic lots.

8. 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.
 

9. The minimum prices for the spectrum rights of use 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. "


OFCOM consults on its review of the ADR scheme

OFCOM has launched its consultation on its review of its alternative dispute resolution scheme (see OFCOM's respective page).

ICO's updated guidance on cookies

ICO has made available its updated guidance on the new cookies regime. See interestingly the section focusing on "implied" consent which has caused quite a stir (see also ICO's blog relative post).

French NCA consults on possible remedies as regards Canal Satellite/TPS case

"The investigation services of the Autorité de la concurrence ... open a market test to gain stakeholder views on possible remedies to address the effects of the acquisition of sole control of TPS and CanalSatellite by Vivendi and Canal Plus groups" (see the NCA's press release).

Friday, 25 May 2012

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

The European Commission made the follwoing comments, in its decision, to CRC, on the latter's 2nd review of the fixed call termination market:

"Need for a common approach to price control of call origination services

The Commission notes that CRC proposes to use the same price control methodology for the SMP operator on the one-sided market for call origination services in the fixed network as for call termination, on which decreases in wholesale charges are offset by lower payments for interconnection. The call origination rates will be calculated according to a pure BU-LRIC costing model. It can therefore be expected that the call origination prices would decrease because the host access network operator will be compensated only for the traffic-related avoidable costs of providing call origination services to carrier select and pre-select operators, but not for the non-traffic related costs.
 

The Commission observes that NRAs apply a variety of costing methods for call origination services, some of which appear to be based on fully allocated costs. Other NRAs are considering increasing the prices for wholesale call origination by including certain costs from other regulated services, notably from fixed termination.
 

The CRC approach may lead to a significant decrease of origination charges. The Commission therefore calls upon CRC to further motivate, in its final measure, its decision to adopt the proposed costing methodology for wholesale call origination in the fixed network.
 

Against this background, the Commission notes that under Article 7 of the Framework Directive NRAs have to contribute to the development of the internal market by working with each other and with the Commission and BEREC in a transparent manner so as to ensure the consistent application, in all Member States, of the provision of this Directive and Specific Directives. In particular, NRAs shall work with the Commission and BEREC to identify the types of instruments and remedies best suited to address particular types of situations in the marketplace.
 

In this regard, the Commission would like CRC to provide further explanations and relevant data on wholesale call origination charges to the Commission, BEREC and other NRAs with a view to ensure the development of a consistent regulatory approach in the internal market."

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

The European Commission, made the following comments, in its decision, to CRC, on the latter's 2nd review of the fixed call termination market:

"Need for an appropriate price control ensuring that customers derive maximum benefits in terms of efficient cost-based termination rates
 

The Commission notes that CRC proposes to set the FTRs on the basis of a benchmarking method which considers the rate of reduction of FTRs in one Member State, which has already calculated the recommended pure BU-LRIC model.
 

Firstly, the Commission considers that a proper benchmarking should be based on the actual level of FTRs resulting from the pure BU-LRIC model(s), and not on the rate of reduction of the FTRs in other Member States. The focus on the rate of reduction might not lead to a pure BU-LRIC level of FTRs, due to different starting points of the glide-path and different initial levels of FTRs.
 

However, the Commission notes that despite the application of a benchmark based on a rate of reduction, the levels of FTRs as proposed by CRC appear to be roughly consistent with the actual price level in the comparator country, i.e. the Netherlands, as calculated according to the pure BU-LRIC model.
 

In this regard, the Commission notes a particular difficulty in using a benchmark for setting FTRs, as to date only one regulator (i.e. OPTA in the Netherlands) has calculated the FTRs in accordance with the recommended pure BU-LRIC model. Therefore the Commission would like to invite CRC to review the proposed rates in case further comparable data on FTRs become available. In any case, the Commission would like to ask CRC to implement the planned pure BU-LRIC model as proposed on 1 July 2013.
 

The Commission reminds CRC that if it were to propose a price remedy for the period following 1 July 2013, which would deviate from EU law and the principles of the Termination Rates Recommendation, the Commission could proceed to opening a phase II investigation pursuant to Article 7a of the Framework Directive."

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

The European Commission, made the following comments, in its decision, to CRC, on the latter's 2nd review of the mobile call termination market:

"Need for an appropriate price control ensuring that customers derive maximum benefits in terms of efficient cost-based termination rates
 

The Commission notes that for the period from 1 July 2012 until 30 June 2013 the CRC proposes to set termination rates on the basis of a benchmarking method.
 

The Commission notes that the purpose of Recital 22 and of Recommend 12 of the Termination Rates Recommendation is to enable NRAs, in case of limited resources, to come to a cost efficient rate without having to finalise a pure BULRIC model in a timely manner. Therefore, as indicated by the Commission in similar cases, if the alternative methodology chosen is benchmarking, it should be performed by taking into account average MTRs only of those Member States which have implemented the recommended cost methodology as of 1 January 2013, which is pure BU-LRIC and not BU-LRIC plus. Further to that, rates used for benchmarking should represent the cost efficient target rates at the end of the respective glide paths. Such an approach has also been recently endorsed by BEREC.
 

In the present case, the Commission observes, however, that at least until 30 June 2013 the proposed benchmarking method does not seem to be consistent with the Termination Rates Recommendation. Although CRC proposes to use as sample only EU countries using LRIC, one of them is not using pure BU-LRIC but a BU-LRIC plus cost methodology. Further to that, the Commission notes that the rates used for benchmarking purposes are historic rates applicable as of 1 January 2011 to which the CRC applies a semi-annual price decrease of 16%. However, the proposed benchmarking method and prospective percentage reduction do not appear to reflect the cost efficient target rates at the end of the respective glide paths. The resulting rates as of 1 January 2013 appear to be approximately twice as high as the average of the target rates of those countries.


The Commission takes note of CRC's assurance to implement its pure BU-LRIC model as from 1 July 2013.

Against this background, in order both to bring more quickly the benefits of lower MTRs to the consumers and avoid excessively steep drops in MTRs at the end of the transition, the Commission asks the CRC to modify its benchmarking method in such a way that it would lead already in the period preceding 1 July 2013 to a reduction of MTRs in line with the Termination Rates
Recommendation.

 

The Commission reminds the CRC that if it were to propose a price remedy for the period following 1 July 2013, that deviated from EU law and the principles of the Termination Rates Recommendation, the Commission could proceed to opening a phase II investigation pursuant to Article 7a of the Framework Directive."

Commission's Art. 7 Comments to ANACOM as regards the latter's proposed MTRs glidepath

The European Commission had no comments to make, in its decision, to the Portuguese NRA, on the latter's communicated "details for implementation of the obligation of price control according to the BU-LRIC costing methodology". ANACOM has come to the following MTRs glide path:

30 April 2012             2.77 c€ per minute
30 June 2012              2.27 c€ per minute
30 September 2012    1.77 c€ per minute
31 December 2012     1.27 c€ per minute

"In its answer to the request for information, ANACOM explains that the target MTR is 20% higher than the simple average of the MTRs calculated by the NRAs of other EU countries having implemented a pure BU-LRIC-costing model.13 ANACOM stresses that different geographic characteristics and usage patterns in Portugal lead to slightly higher incremental costs compared to the EU countries looked at. In fact, Portugal would be a relatively small country with a lower density of population, more remote areas and, therefore, lower economies of scale. Furthermore, the model would be based on a conservative estimate of development of mobile broadband usage, mandated by the observed usage. In its answer to the request for information ANACOM commits to reviewing and updating its cost model in due time, namely considering the experience and results of other models and a comparative analysis."


Finnish Ministry of Transport and Communications consults on the Government's draft television strategy - 700MHz reserved for broadband in 2017

"The Minister of Housing and Communications Krista Kiuru has presented the Government's draft strategy for the future of television.

For television viewers, perhaps the most important news is that under the strategy, it would be possible to use common television sets for receiving programmes of the Finnish Broadcasting Company (YLE) and the principal commercial channels until 2026, if necessary.

The aim of the Communications Policy Programme for Electronic Media is to guarantee the quality and diversity of television and radio programmes and to ensure that domestic content production will remain at least at present levels. This would be ensured by imposing requirements on the principal commercial channels concerning programmes in domestic languages.

Almost all existing network and programme licences will expire at the end of 2016. Under the proposed strategy, network licences would also in the future be granted using a comparative method or what is called a beauty contest.

Two of the television multiplexes would be allocated to YLE and public service channels (principal commercial channels). One of the two multiplexes would continue broadcasting using existing technology until 2026, while most of the other multiplexes would introduce high-definition technology in 2017.

In order topromote efficient use of frequencies, other than the principal commercial multiplexes would have to pay a higher spectrum fee, which would, however, be set at moderate levels.

The setting up of alternative distribution channels would be encouraged by allocating the 700-megaherz frequency band, now used by television broadcasts, to the wireless broadband in 2017. A decision has already been made on the allocation of the 800-megaherz frequency band for broadband use. However, it is estimated that there will also be enough frequencies for television broadcasting after these allocations.

Programme licences will remain but the procedure concerning them will be streamlined. Under the proposal, the Finnish Communications Regulatory Authority would decide on television and radio licences, while important communications policy decisions would also in the future be made by the Government.

The future of domestic content production would be secured by obligating the principal commercial television channels to allocate at least 18 per cent of their broadcasting time or programme budgets to programmes of independent production companies. At the moment, the minimum requirement is 15 per cent.

Under the proposed strategy, television network licences and programme licences would be granted for twenty and ten years, respectively.

The procedures concerning radio broadcasting would also be streamlined. In the future, most of the operating licences would be granted by the Finnish Communications Regulatory Authority, which would also assume more responsibility for decisions concerning frequency technology.

A consultation process will now follow and interested parties will have an opportunity to submit opinions on the draft proposal by 2 July" (see the Ministry's related page).

Thursday, 24 May 2012

AG delivers Opinion in Mühlleitner case

AG Pedro Cruz Villalon, delivered his Opinion in case C-190/11 (in french and greek), according to which, for the establishment of jurisdiction of art. 15(1)(c) of regulation 44/2001 there is no prerequisite of a distance contract being concluded bewteen the consumer and the other party. The relevant provision does not thus, require a distance contract and any contract a consumer enters into, falls into the ambit of the said provision.

General Court dismisses Mastercard's appeal

"By decision of 19 December 2007 the European Commission declared the multilateral interchange fees (MIFs) applied under the MasterCard card payment system to be contrary to competition law.
 

The MIF corresponds to a proportion of the price of a payment card transaction that is retained by the card-issuing bank. The cost of the MIF is charged to merchants in the more general context of the costs which they are charged for the use of payment cards by the financial institution which handles their transactions.

...
 
The Commission found that the MIF had the effect of setting a floor under the costs charged to merchants and thus constituted a restriction of price competition that was to their detriment. The
Commission also took the view that it had not been demonstrated that the MIF could generate efficiencies capable of justifying its restrictive effect on competition.
 

...
 

The companies representing MasterCard brought an action before the General Court for annulment of the Commission’s decision. ...

In its judgment delivered today, the General Court dismisses that action and confirms the Commission’s decision.
 

Thus, the General Court does not accept the arguments relating to the objective necessity of the MIF to the operation of the MasterCard payment system. It was, inter alia, submitted that if there were no collection of MIFs, financial institutions would find it necessary to offer their customers other types of payment cards or to reduce the benefits to cardholders, which would affect the MasterCard system’s viability. Noting in particular the importance of revenues and commercial benefits other than MIFs which the financial institutions derive from their payment card issuing business, the General Court considers it unlikely that, without a MIF, an appreciable proportion of banks would cease or significantly reduce their MasterCard card issuing business or would change the terms of issue to such an extent as to be likely to result in holders of those cards favouring other forms of payment or payment cards.
 

Since the MIF is not objectively necessary for the operation of the MasterCard system, the Commission was entitled to consider its effects on competition independently rather than in conjunction with the effects of the MasterCard system to which the MIF relates. That analysis of the effects of the MIF on competition is also endorsed by the General Court; the Commission having been legitimately entitled to conclude that, without the MIF, merchants would be able to exert greater competitive pressure on the amount of the costs they are charged for the use of payment cards.
 

A further complaint against the Commission concerned its continued characterisation of the MIF in terms of a decision by an association of undertakings, even though, since its initial public offering on the stock exchange on 25 May 2006, MasterCard Inc. has ceased to be controlled by the financial institutions participating in the MasterCard system, and those institutions play no part in setting the level of the MIF. In response to those arguments, the General Court observes that the financial institutions continued, collectively, to exercise decision-making powers in respect of the essential aspects of the operation of the MasterCard payment organisation, both at a national and at a European level. It also notes that there is a commonality of interests between the MasterCard payment organisation and the financial institutions in the MIF being set at a high level. The General Court infers from this that, despite the changes that took place following MasterCard Inc.’s initial public offering on the stock exchange, the MasterCard payment organisation had remained an institutionalised form of coordination of the conduct of the participating financial institutions.

Consequently, the Commission was entitled to continue to characterise the MIF in terms of decisions by an association of undertakings.
 

Lastly, referring to the contribution of the MasterCard system to technical and economic progress – and, in particular, to the objective advantages which MasterCard cards represent for cardholders and for merchants (payment guarantee, speed of settlement of transactions, increase in the number of transactions…) – the companies representing MasterCard and some financial institutions claimed that the MIF should have been granted an exemption by the Commission. The General Court rejects that line of reasoning also, observing, inter alia, that the methods of setting the MIF tended to overestimate the costs borne by the financial institutions on issuing payment cards and, moreover, inadequately to assess the advantages which merchants derive from that form of payment" (see the General Court's press release).

Commission receives Hutchison 3G Austria/Orange Austria prior notification of concentration

"On 7 May 2012, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 ( 1 ) by which the undertaking H3G Austria Holdings GmbH (‘H3G’, Austria), an indirect wholly owned subsidiary of Hutchison Whampoa Limited (‘HWL Group’, Hong Kong), acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of the undertaking Orange Austria Telecommunication GmbH (‘Orange’, Austria) by way of purchase of shares" (see the OJ).

OFCOM decides on extending spectrum transfer to the maritime and satellite earth station sectors

"...The 2011 consultation set out proposals to permit the transfer of maritime and satellite earth station licences to a third party (spectrum transfer).

...

1.3 This decision will permit maritime and satellite earth station licensees to transfer their spectrum rights outright or in part in some instances, once regulations have been made. The changes will allow licensees the flexibility to transfer unused/ underused elements of their spectrum holdings to a third party who could make use of it. However, this decision does not permit the new licensee who has been transferred the rights and obligations of the licence to use spectrum for an alternative purpose. The new licensee will still be bound to the terms, conditions and restrictions of the original licence. " (see related page).

Commission consults on harmonisation of spectrum available for wireless microphones and cordless video-cameras

The European Commission has launched its "Public consultation on the introduction of options for harmonisation of spectrum available for wireless microphones and cordless video-cameras (PMSE equipment)" (see Commission's related page).

ECN Resolution on protection of leniency material in the context of civil damages actions

Meeting of Heads of the European Competition Authorities of 23 May 2012, brought a Resolution on the protection of leniency material in the context of civil damages actions, under which "CA's take the joint position that leniency materials should be protected against disclosure to the extent necessary to ensure the effectiveness of leniency programmes".

Finnish NRA issues Annual Report

FICORA has issued its 2011 Annual Report.

Norwegian regulator issues Report on regulatory assessment of Content Delivery Networks

"The Norwegian Post and Telecommunications Authority concludes in the report “Content Delivery Networks – regulatory assessment” that there are no regulatory needs associated with the CDN marked at the time being. The report is a follow-up of the report “The changing Internet” from 2011.

Multimedia traffic over Internet has increased significantly in recent years, and Content Delivery Networks (CDN) has played an important role in this development. The Norwegian Post and Telecommunications Authority (NPT) has considered CDN up against the current electronic communication regulations, and against questions regarding network neutrality and robustness. The report is an assignment from the Norwegian Ministry of Transport and Communication and is a follow-up of the report “The changing Internet”, published in 2011.


The NPT has performed a preliminary regulatory assessment of whether CDN is covered by the current electronic communications regulations. NPT has considered whether CDN can be considered an electronic communication service and/or network in relation to the definitions provided in the Electronic Communications Act.


In its evaluations, NPT has assumed that CDN services as a starting point do not appear to fulfil the criteria for electronic communications services. With regard to infrastructure-based CDN services, the transmission part of the CDN deliverable may fulfil the criteria. The conclusions are uncertain and the Authority is open to changing these, especially in light of the Ministry of Transport and Communications' proposal for new definitions. The Ministry sent these definitions on an ordinary hearing round in June 2010.

Considering network neutrality NPT believes that CDN must be viewed in the same manner as other servers that generate content. CDN will therefore not be subject to the network neutrality requirements.

CDN network that has been built with high redundancy normally has high uptimes. A failure of all CDN servers at an ISP can lead to significant traffic disturbances and reduced access to and from the ISP network, and in the worst-case scenario can lead to overloading. The consequences will nevertheless be limited.

However, if one of the largest CDN networks goes down, the global Internet could be affected. However, it is possible for a content provider to secure its services against the breakdown of an entire system by entering distribution agreements with multiple CDN providers" (see the press release).

Wednesday, 23 May 2012

ComReg consults on its review of the mobile call termination market

The Irish NRA has launched its consultation as regards its review of the mobile call termination market. Price Control remedies will be considered in a separate consultation, however, the regulator notes beforehand that exclusion of MVNOs from such remedies is suggested to be discontinued.

Uk and Ireland sign MoU on 800 MHz

The UK and Ireland have signed a Memorandum of Understanding (MoU) describing "the procedures for the coordination of radio services, other than broadcasting, between the Republic of Ireland (RoI) and the United Kingdom (UK) in the frequency band 790 – 862 MHz".

Competition Commission finds pay-TV movies market increasingly competitive

"In its revised provisional findings published today as part of the Movies on Pay TV investigation, the Competition Commission (CC) finds that Sky Movies no longer provides Sky with a material advantage over its rivals in the pay-TV retail market. 

Whereas in the past consumers wanting to watch recent movies on a pay-TV movie service had to subscribe to Sky Movies through a traditional pay-TV platform, the launch of new and improved movie services in the pay-TV market by Netflix and LOVEFiLM means that they now have other alternatives. The CC expects consumer choice to increase further when Sky launches its own Internet-based service in the summer (branded Now TV), which will offer Sky Movies without the need to take any other pay-TV content or subscribe to Sky’s satellite platform.

The CC has also revised its views on the relative importance consumers attach to seeing recent movie content within a pay-TV movie service compared with other service attributes, finding that the range of content offered and the price are as, if not more, important than recency" (see the press release).

Tuesday, 22 May 2012

Malta' NRA consults on its review of the mobile call origination market

MCA has launched its consultation of its review of the market of wholesale access and call origination on mobile networks (see related page).

Portuguese draft law on setting compensation fund for universal service approved

Portuguese draft law on setting compensation fund for universal service approved by the Council of Ministers (see the NRA's press release).

OCECPR consults on review of market 4

The Cypriot NRA has launched its consultation on its review of the wholesale physical network infrastrucure access market (see related page, in greek).

Brussels Court of Appeals endorses MTRs reduction but lack of "EU consultation" brings implications

"On 29 June 2010, BIPT adopted a decision that lowers the mobile termination rates to 1.08 eurocent/min by 1 January 2013. In July 2010, BASE and Mobistar submitted to the Brussels Court of Appeal requests to suspend that BIPT decision, but to no avail. The Court already ruled at the time that BIPT had not made any manifest errors of judgment.
 

Awaiting a judgment on the merits and not having been suspended, the termination rates were already lowered gradually by the BIPT decision on 1 August 2010, 1 January 2011 and lately on 1 January 2012.
 

In an eighty page judgment the Court of Appeal now confirms BIPT’s method and motivation on the merits of the case, and systematically dismisses the grievances of the mobile operators who challenged the decision.
 

However, the Court accepts he ground for annulment that, in accordance with the cooperation agreement, the draft decision should have been notified to the Community regulators.
 

Considering the decision’s objectives of general interest the Court thinks, however, that the annulment for a procedural matter should be limited in time. It has therefore requested the Constitutional Court to examine that possibility.
 

Concretely this means that the decision of 29 June 2010 remains valid awaiting the answer to
the preliminary question submitted to the Constitutional Court. Afterwards the Court will give
its final ruling and BIPT can adopt a corrective draft decision, which is notified to the
Community regulators. The rates imposed will therefore remain in full force.
" (see BIPT's press release).

Monday, 21 May 2012

Commission withdraws objections on Danish SMS termination case - UPDATE

Since the Danish NRA, DBA, amended its remedies, the Commission, issued its decsision to withrdraw its  art. 7a objections on the respective case. Commission's assessment reads as follows:

"Following an examination of DBA's amended draft measure and taking utmost account of BEREC's opinion, the Commission has taken the decision to lift the reservations indicated in the serious doubts letter. This decision is based on the following reasons:
 

i) The Commission no longer has serious doubts as to the compatibility of the amended draft measure with EU law. The Commission's main concern was that the draft measure would lead to indirect discrimination against operators established in Member States other than Denmark. However, the newly proposed measure imposes a price control remedy on the SMS termination service regardless of where the SMS originated. This will in practice prevent Danish operators from charging higher prices to operators established outside Denmark compared to Danish ones. Therefore, the Commission does no longer believe that the draft measure would lead to indirect discrimination. Moreover, the Commission welcomes DBA's recognition that an essentially identical competition problem exists in relation to termination of SMS originated in Denmark and SMS originated abroad. The pricing analysis performed by DBA shows that the price of terminating a bulk of the SMS traffic that originated in a foreign mobile network is significantly higher than what is warranted by the LRAIC model, leading to DBA's conclusion that the imposition of a price remedy is indeed necessary to address the described competition problem.
 

ii) Further to that, the Commission no longer has serious doubts that the draft measure would infringe Article 8(4) of the Access Directive, since DBA addressed the existing bottleneck with an appropriate price control remedy.

iii) Finally, the Commission no longer has serious doubts that the draft measure would infringe Article 8(5)(c) of the Framework Directive, since DBA's proposal to impose a price control remedy regardless of where the SMS originates will prevent Danish operators from charging higher prices to operators established abroad. Therefore, the risk that higher costs incurred by non-Danish EU operators would be passed on to consumers by charging a higher retail price has now been controlled for.

iv) For the reasons set out above, the Commission no longer has serious doubts that the proposed measure would create a barrier to the single market, as the originally proposed price regulation that could have dissuaded operators and service providers established in other Member States from the provision of their services in Denmark has now been abolished. As for BEREC's remark that unilateral regulation by one particular Member State may result in a considerable loss of bargaining power by national undertakings, the Commission cannot address this argument in this particular decision, since Article 7a of the Framework Directive only entitles it to determine the compatibility of DBA's draft measure concerning SMS termination for Lycamobile with EU law. In any case, if there was a competition problem on the market for SMS termination in other EU Member States, then this should normally be addressed by ex ante regulation, in case the market fulfils the three distinct criteria, or ex post competition law, and the alleged limited bargaining power of Danish operators would not be material. Equally, if there was no competition problem identified by the national NRA or national competition authority (NCA), then there is no strong reason to believe that Danish operators could not secure the same rates for SMS termination as local or other EU operators.
 

v) To conclude, the Commission welcomes DBA's proposal to amend the draft measures and believes that the serious doubts expressed in its letter of 13 February 2013 are no longer valid. As to BEREC's comment that the adoption of the amended measure by DBA would result in Lycamobile being worse-off vis-àvis Danish MNOs, the Commission believes that the adoption of the proposed measure would not seriously harm Lycamobile or its consumers. In any event, the asymmetrical regulation should be in place for a limited period of time, as DBA informed the Commission and BEREC in writing that it would shortly amend existing SMS termination regulation in relation to all other Danish operators. In any case, the Commission believes that the benefits gained by abolishing the limitation of the price control remedy outweigh the potential downsides of asymmetrical rates being in place for a limited period of time."

UPDATE (26/02/2012): Commission has no Art. 7 Comments as regards DBA's amended remedies (see the decision).

Greek Court issues interim measures against ISPs

A Greek Court has issued an interim order (in greek) according to which, Greek ISPs shall block users' access to two sites hosting copyright material in a move to stop users from downloading copyright - protected material.

Friday, 18 May 2012

Sky, Talk Talk and BT appeal OFCOM's LLU and WLR charge control

Sky, Talk Talk and BT appealed OFCOM's LLU and WLR charge control before CAT (see here and here).

AGCOM approves TI's Reference Offers for market 4 and 5 products and consults on NGA products

The Italian NRA has approved Telecom Italia's Reference Offers as regards its market 4 and 5 products (see here, here and here, all in italian). amd launched ist consultationon the sespective Reference Ofer as regards its NGA products speciafically (see here, here and here, all in italian).

Thursday, 17 May 2012

UOKiK consults on proposed amendments to Polish Act on competition and consumer protection

The Polish NCA consults on its proposed amendments to Polish Act on competition and consumer protection.

"Basic draft proposals amending the Act are inter alia aimed at adjustment of time limits for considering cases in merger control. At present, proceedings shall be concluded within two months regardless of its complexity (time allowed for awaiting undertakings’ responses is not included). Both experiences of UOKiK and signals of undertakings clearly indicate this time limit proves too long for non-complex transactions and too short to examine cases of high complexity. For this reason, the concept of two-phase procedure seems to be grounded. Transactions raising no doubts of the Office as regards the potential restriction of competition, should be concluded within 30 days. More complex cases would be reviewed within four months. This would improve the preditability of date for decision issuance which would allow undertakings to adjust their business operations to it.

Another novelty to be introduced is the so called competition concern. The concept means that during pending proceedings in complex cases and such where giving clearance to transaction proves impossible, the Office will inform undertaking on any reservations regarding the transaction under scrutiny. As a consequence, still at the stage of pending proceedings, they find the way of case solving and potential impact of concentration on the market, as diagnosed by the Office. Thus undertakings will have an opportunity to state their view prior to issuance of the decision by the authority.

Simultaneously, with respect to granting the conditional consent, the Office submitted a proposal not to disclose a part of decision regarding the time allowed for fulfillment of the imposed condition. This change results from requests of undertakings, who repeatedly empasized the fact that providing public with information on the deadline for divesting control over a dependent undertaking, or part of its assets, does significantly lower the negotiating position of such seller, and consequently may cause price reduction.

Numerous proposals of UOKiK have as their object increasing the efficiency of eliminating prohibited agreements. The novelty introduced will be the concept of settlements.The Office could offer this option whenever the circumstamces of a given case provide for this solution. An undertaking will be allowed to benefit from it in turn for receiving a 10% fine reduction. This means the proceedings will be accelerated considerably compared to the ordinary procedure, which entails quicker elimination of competition-restricting practice from the market. Regarding the said instruments, the Polish laws will benefit from similar regulations existing in antimonopoly law systems of particular EU Member States and the European Commission. Another measure is the concept of remedies. In the decision concluding proceedings, the President of UOKiK will have a chance to indicate to an undertaking what measures must be taken to eliminate the impacts of infringement or discontinue the prohibited practice. This will allow for effective restoration of competition.

Furthermore, the Office proposes changes aimed at raising interest of undertakings as regards the leniency programme, which will contribute to a better detection of prohibited agreements. The so called leniency plus institution will enable undertakings to obtain even more significant fine reductions for participation in anti-competitive agreement as long as they provide the authority with information on other undetected agreements.


Another preventative measure against anti-competitive practices is introduction of natural persons’ liability in the event of infringement of antimonopoly law by them. These sanctions will perform both represive and preventative functions. Moreover, they will provide the Office with access to the new source of information on  market irregularities, under the
leniency programme also from natural persons, who similarly to undertakings in cases concerning prohibited agreements, will have an opportunity to collaborate with UOKiK and obtain their fine reduction in turn. Other amendments will regard, among others, enhancing the effectiveness of performed inspections with search as well as specifying legal prerequisites for fixing the amount of fines." (see the full press relase).

OFCOM consults on fixed narrowband market review and fixed call origination and termination charge control

OFCOM has launched its consultation on its review of the fixed narrowband telephony services market and on "a report ..., produced by Analysys Mason Group, dated 15 May 2012, summarising the approach taken by several European national regulatory authorities (NRAs) to charge controls on fixed-call origination and termination" (see the relative page).

BIPT releases 2012 final work plan

The Belgian NRA has made available the final 2012 work plan (in french).

BEREC's Benchmark Report on International Roaming is out

BEREC has released its Benchmark Report on International Roaming.

Greek DPA finds Sony Music Entertainment in breach of data protection law after its site was hacked

The Greek DPA, even though it acknowledged mitigating ciscumstancs, it found that the Greek undertaking, Sony Music Entertainment, had violated the Greek data protection law transposing the Data Protection Directive, after its site was hacked a year ago, and data of around 8800 users were breached (the decision, in greek).

Regulation on OHIM's "enforcement" powers published

Regulation on OHIM's "enforcement" powers published in the OJ.

Wednesday, 16 May 2012

Cypriot NRA consults on the amended Frequency Management Plan

OCECPR has amended the Frequency Management Plan to facilitate the introduction of vdsl2 and launched its respective consultation (see the NRA's decision, in greek).

Dutch law establishes protection of net neutrality

The new Dutch Telecoms Act provides for the protection of net neutrality (see the NRA's press release).

Friday, 11 May 2012

Czech NCA initiates proceedings against Telefonica O2

"In connection with a number of media enquiries, the Office for the Protection of Competition confirms that it sent an announcement of administrative proceedings initiation to the company Telefónica O2 Czech Republic, a.s. concerning alleged breach of Czech as well as European competition rules" (see press release).

ComReg releases 3,6 GHz for FWALA and issues revised guidelines for applicants

The Irish NRA announced its release of 3,6 GHz for Fixed Wireless Access Local Area and issues revised guidelines for applicants.

Thursday, 10 May 2012

Greek police arrests two for fraud and copyright infringement

The Greek Police has announced (in greek) it has arrested two men for setting up servers enabling illegal downloading of movies, software and other copyright protected material.

AGCOM consults on 2005 universal service net cost

The Itallian NRA has launched its consultation on the valuation of the net cost of the universal service's provision, as incurred in 2005 (see related page, in italian).

BNetzA declares fulfillment of coverage obligation in the 800 MHz band in 9 states

"As announced today by the Bundesnetzagentur, mobile operators have now met their coverage obligation for 800 MHz spectrum in Saxony as well. As a result, the three mobile operators Telekom Deutschland GmbH, Vodafone D2 GmbH and Telefónica Germany GmbH & Co. OHG can now make unrestricted use of the 800 MHz spectrum bought at auction in that federal state too" (see the press release).

Slovakia's plan for broadband deployment in "white areas" gets green light

The European Commission has approved a Sloavakian plan for basic broadband deployment in "white areas" (decision not yet available but see relevant page).

Commission rejects 102 complaint against Numericable Luxembourg

The European Commission has rejected (decision in french) a complaint for alleged violation of 102 TFEU against Numericable Luxembourg.

Tuesday, 8 May 2012

AGCOM consults on Telecom Italia's Reference Offers for its markets 4 and 5 access products

AGCOM has launched its consultation on Telecom Italia's Reference Offers as regards its markets 4 and 5 products (in italian here and here).

OFCOM proposes to renew mutliplex B license to BFtV for another 12 years

"Ofcom is proposing to renew the Mux B Licence for a further 12 year term commencing upon the expiry of the existing term. Ofcom does not propose to require any additional coverage obligations or supplementary proposals for promoting or assisting the acquisition of DTT receiving equipment in the renewed Licence. Ofcom notes that this is the same basis on which the licences for Multiplexes A, 2, C and D were renewed.

...

Ofcom is proposing to renew the Mux B Licence for a further 12 year term commencing upon the expiry of the existing term..." (see OFCOM's related page).

European Data Protection Commissioners adopt Resolution on the European data protection reform

The European Data Protection Commissioners have adopted a Resolution on the European data protection reform (see the press release).

Commission sends SOs to Slovak Telekom and Deutsche Telekom

"The European Commission has informed Slovak Telekom a.s. (ST) and its parent company, Deutsche Telekom AG, of its objections against their behaviour on several wholesale broadband markets in Slovakia. At this stage, the Commission takes the view that Slovak Telekom may have refused to supply unbundled access to its local loops and wholesale services to competitors, and may have imposed a margin squeeze on alternative operators by charging unfair wholesale prices, in breach of EU antitrust rules. Deutsche Telekom may be liable for the conduct of its subsidiary. The companies now have three months to reply to the Statement of Objections (SO).

Access to ST's wholesale broadband services is crucial for alternative operators wishing to provide retail services to end-users in Slovakia. However, alternative operators have experienced unreasonable and burdensome technical and commercial terms proposed by ST. ST also used delaying tactics and obstructed negotiations over these terms, in particular as regards unbundled access to local loops.

Moreover, ST set its wholesale prices at a level that made it impossible for alternative operators to profitably enter and operate in the retail broadband market in Slovakia (margin squeeze). This practice has recently been condemned by the General court in the Telefónica case .... This has hindered the development of the broadband retail market in Slovakia.

The Commission therefore reached the preliminary conclusion that ST has breached Article 102 of the Treaty on the Functioning of the European Union (TFEU) that prohibits the abuse of a dominant market position.

The Commission also considers on a preliminary basis that Deutsche Telekom may be held liable for the conduct, because of the nature and degree of its links with its subsidiary ST, in which it owns a majority stake of 51%" (see the press release).

Commission adopts State Aid Modernisation Communication

"The European Commission has adopted a Communication on State Aid Modernisation (SAM), setting out the objectives of an ambitious reform package. In the broader context of the EU's agenda to foster growth, state aid policy should focus on facilitating well-designed aid targeted at market failures and objectives of common European interest. The Commission also aims at focusing its enforcement on cases with the biggest impact on the internal market, streamlining rules and taking faster decisions. The Communication identifies a number of actions with a view to implementing these objectives. The main elements of the reform shall be in place by the end of 2013." (see the press release).

Commission's Art. 7 Comments to CMT on its new notification as regards the mobile call termination market

The European Commission, made the following comments, in its decision, to the Spanish NRA, as regards the latter's new (since the previous notification entered phase II (see older post)) notification of the mobile call termination market review:

"Need for a consistent European approach for termination rates

The Commission agrees with CMT that based on the competition problem indentified by CMT, consisting of the risk of excessive pricing for fixed to mobile calls and the potential price - discrimination of off-net mobile calls, a price control remedy is appropriate. The Commission further welcomes CMT's commitment to set regulated mobile termination rates (MTRs) on the basis of a pure BU-LRIC cost model, at a level of 1.09 €ct/min. However, the Commission notes that the proposed glide-path for the introduction of fully cost-oriented MTRs in Spain will result in reaching the LRIC target level only by 1 July 2013, which is not fully in line with the Commission’s Termination Rates Recommendation, according to which NRAs should ensure that termination rates are implemented at a cost-efficient (LRIC) level by the end of 2012.
 

Whilst the Commission takes note of CMT's argument that any earlier introduction of MTRs based on LRIC would result in a disproportionately disruptive impact on the Spanish mobile industry, the Commission reminds CMT that the timeframe for implementing the Recommendation aims to ensure not only the sustainability of the sector but also maximum benefits to consumers as soon as possible. Having said this, the Commission appreciates that regulators are confronted with the need to strike a balance between protecting consumer welfare and avoiding a disruptive impact on the operators. To that end, the Commission acknowledges that NRAs have a certain margin of discretion, which could allow them to delay to a degree the introduction of fully cost-oriented rates.
 

Against this background, and based on the information available to the Commission, a delay – if very limited - in the implementation of the cost-oriented rates is acceptable, taking account of the need to minimise business and regulatory uncertainty in the Spanish markets flowing from an important decrease in MTRs. The Commission considers that, in the light of particular national circumstances, a small deviation of a few months is sufficiently justified (i) given that the revised measures set a level of rates which tend towards the pure BU LRIC rates which are to be implemented by 31 December 2012 by all NRAs, (ii) due to the fact that pure BU-LRIC rates will be achieved much earlier than under the previously notified draft measure, and (iii) due to the fact that the proposed measure now strikes an appropriate balance between the increased consumer welfare on one hand and the risk of disruptive impacts on the sector (through too short a glide - path) on the other hand.

Therefore, the Commission considers that the application of MTRs at a level of 1.09 €ct/min based on a BU-LRIC costing methodology as of 1 July 2013 at the latest would still sufficiently address the pressing need to ensure that consumers derive maximum benefits in terms of efficient cost-based termination rates as soon as possible after the 1 January 2013 by eliminating competitive distortions associated with above-cost termination rates.

Moreover, the Commission takes note that CMT indicated that the consumer surplus of the draft measures relative to those previously notified will increase by around 80 million €.
 

Nevertheless, the Commission notes that the proposed glide-path would maintain MTRs in Spain at relatively high levels in its first stages (16 April 2012 to 29 March 2013) while leading to a very steep and sudden decrease in its last stage (1 March to 1 July 2013). Against this background, in order both to bring more quickly the benefits of lower MTRs to the consumers and avoid excessively steep glide-paths at the end of the transition, the Commission asks CMT to reconsider the individual steps of the proposed glide-path in order to reduce termination rates in Spain earlier and more gradually.
 

Need for cost-oriented, symmetric termination rates
 

The Commission notes that CMT's decision also leads to a period until 1 July 2013 during which asymmetric MTRs on Xfera/Yoigo continue to be applied. 

The Commission recalls that, given that Xfera/Yoigo entered the market in 2006, in principle any asymmetry beyond 31 December 2012 should not be justified, as the higher (asymmetric) termination rates would be maintained beyond the time needed by such operator to adapt to market conditions and become efficient over time (which could even discourage such operator from seeking to expand its market share).
 

However, the Commission acknowledges that the proposed timeframe for ending such asymmetry – only 6 months beyond the recommended deadlines - would have a limited impact on competition. This is due, in particular, to the fact that the impact of the remaining asymmetry for January – July 2013 should be low given Xfera/Yoigo's relatively low retail market share.
 

Nevertheless, the Commission invites CMT to take full account of the Termination Rates Recommendation and to consider setting symmetric cost-oriented termination rates for all Spanish MNOs already as of 1 January 2013 in order to bring more quickly to Spanish and EU end-users the full benefits of low MTRs in Spain."


Commission's Art. 7 Comments to the Slovakian NRA on the latter's modification of price control methodology in the mobile call termination market

The European Commission, made the following comments, in its decision, to TUSR as regards the latter's modification of the price control methodology in the mobile call termination market, since the NRA could not develop a LRIC model and proposed to change to benchmarking:

"Need for an appropriate price control ensuring that customers derive maximum benefits in terms of efficient cost-based termination rates
 

The Commission notes that for the period from 31 May 2012 until 30 May 2013 TÚSR proposes to set termination rates on the basis of a LRIC benchmarking method.
 

The Commission notes that the purpose of Recital 22 and of Recommend 12 of the Termination Rates Recommendation is to enable NRAs, in case of limited resources, to come to a cost efficient rate without having to finalise a pure BU-LRIC model in a timely manner. Therefore, as indicated by the Commission in similar cases, if the alternative methodology chosen is benchmarking, it should be performed by taking into account average MTRs only of those Member States which have implemented the recommended cost methodology as of 1 January 2013, which is pure BU-LRIC and not BU-LRIC plus. Further to that, rates used for benchmarking should represent the cost efficient target rates at the end of the respective glide paths. Such an approach has also been recently endorsed by BEREC.


In the present case, the Commission however observes that at least until 30 May 2013 the proposed benchmarking method is not consistent with the Termination Rates Recommendation, even if TÚSR proposes to use as sample only EU countries using LRIC, as some of them are not using pure BU-LRIC but BU-LRIC plus cost methodologies. Indeed, the Commission notes that the rates used for benchmarking purposes are historic rates and do not represent the cost efficient target rates at the end of the respective glide paths. This is because TÚSR incorrectly relies on termination rates which were in place on 1 July 2011 which therefore do not represent the target, pure BU-LRIC rate, but only a step on the glide path towards it. As a consequence of the method chosen by the TÚSR, the calculated MTRs to be applied until 30 May 2013 will be set above the average of MTRs set in Member States implementing the pure BU-LRIC model.
 

The Commission also takes note of TÚSR's assurance to implement its pure BU-LRIC model as from 31 May 2013.

Against this background, in order both to bring more quickly the benefits of lower MTRs to the consumers and avoid excessively steep drops in MTRs at the end of the transition, the Commission asks TÚSR to modify its benchmarking method in such a way that it would lead already in the period preceding 31 May 2013 to a reduction of MTRs in line with the Termination Rates Recommendation.

The Commission reminds the TÚSR that if it were to propose a price remedy for the period following 31 May 2013, which would deviate from EU law and the principles of the Termination Rates Recommendation, the Commission could proceed to opening a phase II investigation pursuant to Article 7a of the Framework Directive."

Commission adopts first report on the application of the AVMS Directive

The European Commission adopted its first report on the application of the Audiovisual Media Services Directive (see the press release and the reports' related page).

Thursday, 3 May 2012

Court's judgment in Pie Optiek case

The CJEU has delivered its decision (in french or greek) in case C-376/11, the operative part of which reads as follows:

"Article 12(2) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration must be interpreted as meaning that, in a situation where the prior right concerned is a trade mark right, the words 'licensees of prior rights' may not refer to a person who has been authorised by the proprietor of the trade mark solely to register, in his own name but on behalf of the licensor, a domain name identical or similar to the trade mark, but without being authorised to put the trade mark to other uses or to use the sign as a trade mark - for example, for the purpose of marketing of goods or services under the trade mark".

Court's decision in SAS Institute case

The CJEU has delivered its judgment in Case C-406/10, the operative part of which reads as follows:

"1. Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.

2. Article 5(3) of Directive 91/250 must be interpreted as meaning that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.

3. Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if – this being a matter for the national court to ascertain – that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright."

Wednesday, 2 May 2012

FCC creates rules to permit TV channel sharing

"The Federal Communications Commission (FCC) today took its first step toward making a significant portion of spectrum currently used by the broadcast television service available for new uses. The Report and Order, in anticipation of a future incentive auction to address the nation’s growing demand for wireless broadband, allows multiple broadcast stations to elect to stream individual programming while sharing a single channel.


...


Specifically, the Report and Order establishes a framework for how two or more television licensees may voluntarily share a single six MHz channel in conjunction with the auction process:

- While stations will need to retain at least one standard definition programming stream to meet the FCC’s requirement of providing an over-the-air video broadcast at no direct charge to viewers, they will have the flexibility of tailoring their channel sharing agreements to meet their individual programming and economic needs.

- Stations sharing together will employ a single channel and transmission facility but will each continue to be licensed separately, retain its original call sign, retain all the rights pertaining to an FCC license, and remain subject to all of the FCC’s rules, policies, and obligations" (see the full press release).

FCC reforms USF contribution system

"Continuing its overhaul and modernization of the Universal Service Fund (USF), the Federal Communications Commission today launched reform of how funding is collected to support universal access to voice and broadband" (see the full press release).

FCC adopts rules to protect consumers from "cramming"

"The Federal Communications Commission (FCC) today took steps to protect Americans from difficult-to-detect fraudulent charges on their landline phone bills. The new rules combat “cramming,” the illegal placement of unauthorized charges on a consumer’s monthly phone bill. The Commission also asked for comment on additional ways consumers can protect themselves against
this troubling activity.
 

Specifically, the new rules:

- Require telephone companies to notify subscribers at the point of sale, on each bill, and on their
websites of the option to block third-party charges from their landline telephone bills, if the
carrier offers that option;


- Strengthen the Commission’s requirement that third-party charges be separated from the landline
telephone company’s charges on phone bills; and


- Ask whether the Commission should adopt additional protections, such as requiring landline
telephone companies to get consumer consent before placing those charges on their telephone
bills if the company already offers to block those charges.
" (see the full press release).

ComReg consults on inter-operator switching processes

"This preliminary consultation calls for input from telecommunications operators and is intended to gather information on a range of topics related to inter-operator switching processes".

Irish NRA consults on telephony service USO

ComReg has launched its consultation as regards the provision of telephony services under Universal Service Obligations (see also press release).