Friday, 29 June 2012

General Court decided in Microsoft case

The Court has delivered its ruling, in case T-167/08, upholding the Commission's respective decision. Its operative part reads as follows:

"hereby:

1.      Fixes the amount of the periodic penalty payment imposed on Microsoft Corp. in Article 1 of Commission Decision C(2008) 764 final of 27 February 2008 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corp. by Decision C(2005) 4420 final (Case COMP/C‑3/37.792 – Microsoft) at EUR 860 million;

2.      Orders Microsoft to bear its own costs and to pay 95% of the costs incurred by the European Commission, excluding the costs incurred by the Commission in connection with the intervention of The Computing Technology Industry Association, Inc. and the Association for Competitive Technology, Inc., and 80% of the costs incurred by the Free Software Foundation Europe eV and Samba Team, the Software & Information Industry Association, the European Committee for Interoperable Systems, International Business Machines Corp., Red Hat Inc. and Oracle Corp.;

3.      Orders the Commission to bear 5% of its own costs, with the exception of the costs incurred in connection with the intervention of The Computing Technology Industry Association and the Association for Competitive Technology;

4.      Orders The Computing Technology Industry Association and the Association for Competitive Technology each to bear their own costs including those incurred by the Commission in connection with their intervention;

5.      Orders the Free Software Foundation Europe and Samba Team, the Software & Information Industry Association, the European Committee for Interoperable Systems, International Business Machines, Red Hat and Oracle to bear 20% of their own costs."



It is stated also, in the Court's press release:

"The Court considers, first, that, taking account of the pricing principles drawn up by Microsoft and the Commission, Microsoft was in a position to assess whether the remuneration rates it was seeking up to 21 October 2007 for granting access to the interoperability information were reasonable for the purposes of the 2004 decision.
 

Second, the Court holds that the criterion relating to the innovative character of the technologies in question – which was used by the Commission in the assessment of the reasonableness of Microsoft’s remuneration rates – gives an indication of whether those rates reflect the intrinsic value of a technology rather than its strategic value, namely the value stemming from the mere ability to interoperate with Microsoft’s operating systems.
 

In that regard, third, the Commission is entitled to assess those technologies’ innovative character by reference to its constituent elements, namely novelty and inventive step, Microsoft in any event not having argued that the inventiveness of the technologies at issue cannot be assessed in a context other than that of a patent grant. The effect, in the context of this case, of assessing the innovative character of the technologies covered by the contested decision by reference to novelty and inventive step is not to extinguish generally the value of intellectual property rights, trade secrets or other confidential information, let alone make innovative character a precondition for a product or information to be covered by such a right or to constitute a trade secret in general. The sole purpose of such an assessment is to preclude, as required by the 2004 decision, any remuneration received by Microsoft from reflecting the strategic value of the interoperability information.
 

Furthermore, the Court considers that Microsoft has failed to invalidate the Commission’s assessment that 166 of the 173 technologies relating to the interoperability information were not innovative."

See also the Commission's press release and Joaquín Almunia's statement.

FCC's investigations of Comcast's compliance with certain Comcast-NBCU merger conditions ends in settlement

"Today, the Enforcement Bureau of the Federal Communications Commission adopted a consent decree resolving the FCC’s investigation of Comcast Corporation’s compliance with certain broadband-related merger conditions imposed by the Commission’s Order approving the Comcast-NBCU transaction. The Bureau specifically negotiated an unprecedented year-long extension of the merger condition requiring Comcast to offer a reasonably priced broadband option to consumers who do not receive their cable service from the company. In addition, Comcast will pay an $800,000 voluntary contribution to the U.S. Treasury as part of the settlement" (see the press release and order).

Greek NRA issues decision on methodology to declare priority cases to investigate

The Greek NRA issued its decision as regards its methodology to declare priority cases to investigate (see decision, in greek).

UKE proposes Memorandum on the quality of telecommunications services

"On 18 May this year a meeting of the President of UKE with the invited telecommunications undertakings was held at the Office of Electronic Communications (UKE). The meeting was devoted to the principles of consumer protection and ensuring their rights in terms of transparency of contracts and service quality.

The meeting launched a long-term cooperation of the regulator with stakeholders operating in the telecommunications market, aimed at working out the requirements in order to provide customers with transparent information about the quality and availability of telecommunications services and framework indicators defining the reference level of the quality of these services.

...

Operators welcomed the initiative of the President of UKE and declared their interest in further cooperation.

The principles of cooperation with the telecommunications undertakings are going to be defined in the Memorandum after consultation and agreement with the telecommunications undertakings on its content. For the implementation of the Memorandum a joint working team will be set up, which will start working on the requirements as regards informing the customer about the services provided, including their quality and availability." (see UKE's press release).

UKE consults on the tender for five exclusive frequency licenses in the 1729,9-1754,9 MHz and 1824,9-1849,9 MHz bands

UKE consults on the tender for five exclusive frequency licenses in the 1729,9-1754,9 MHz and 1824,9-1849,9 MHz bands (see press release).

ComReg consults on the appropriate price control methodology for both FTRs and MTRs

The Irish NRA launched its consultation on the appropriate price control methodology to be used for the purposes of regulating both FTRs and MTRs (see also the external consultant's report).

Bulgarian NRA adopted its final decision on its review of the mobile call termination market

CRC adopted its final decision on its review of the mobile call termination market.

"The CRC determined “Bulgarian Telecommunications Company” AD, “Mobiltel” EAD and “Cosmo Bulgaria Mobile” EAD as undertakings with significant market power on the analyzed market and particular specific obligations are imposed on them.

It is foreseen in the market analysis that a new glide path for reduction of the voice call termination rates on individual mobile networks which will be valid till 30.06.2013 and after that cost oriented prices determined on the grounds of BULRIC model will be applied. The first step will be in force as from 01.07.2012 when the wholesale prices in peak hours will be reduced from BGN 0,13 / per minute to BGN 0,055 / per minute, and in the second reduction as from 01.01.2013 the price will be BGN 0,046 / per minute and will be valid till 30.06.2013" (see the press release).

Bulgarian NRA issued final decision on its review of the fixed call origination and termination markets

CRC issued its final decision on its review of the fixed call origination and termination markets.

"The CRC determined “Bulgarian Telecommunications Company” AD as an undertaking with significant market power on the wholesale market for call origination on the public telephone network provided at a fixed location and particular specific obligations are imposed on it.

The CRC determined “Bulgarian Telecommunications Company” AD, “ITD Network” AD, “Blizoo Media and Broadband” EAD, “Varna Net” OOD, “Vestitel BG” AD, VOXBONE S.A./N.V, “Global Communication Net” AD, “Gold Telecom Bulgaria” AD, “Eastern Telecommunication Company” AD, “Interbild” OOD, “Interoute BulgariaEAD, “Cosmo Bulgaria Mobile” EAD, “Mobiltel” EAD, “Nexcom Bulgaria” EAD, “Net Is Sat” OOD, “Netfinity” EOOD, “Orbitel” EAD, “Skat TV” OOD, “Spectrum Net” EAD и “Telecom 1” OOD as undertakings with significant market power on the relevant  wholesale markets for call termination on their own public telephone networks provided at a fixed location and particular specific obligations are imposed on them.

A new glide path for reduction of the call origination rates on the public telephone network provided at a fixed location and for call termination on individual public telephone network provided at a fixed location is foreseen in the market analysis. The first step will be in force as from 01.07.2012 when the wholesale prices will be reduced from BGN 0,0105 / per minute to BGN 0,0090 / per minute, and in the second reduction as from 01.01.2013 the price will be BGN 0,0085 / per minute and will be valid till 30.06.2013 and after that the cost oriented prices determined on the grounds of BU-LRIC model will be applied" (see the press release).

Bulgarian NRA consults on leased lines markets reviews

"With Decision No 226 of 16.02.2012 the Communications Regulation Commission adopted a draft decision on definition, analysis and assessment of the retail leased lines market, the market of wholesale terminating segments of leased lines and the market of wholesale trunk segments of leased lines and launched a public consultation procedure. As a result of the conducted public consultation corrections were made in the draft decision and the appendix to it and they affect the proposed price measures. The Commission is of the opinion that the amendment in the draft is essential and this establishes the necessity of carrying out a new public consultation. The CRC has processed also the data that are obtained from the annual questionnaires for 2011 of the undertakings providing the service “leased lines” and has made respective amendments and supplements to the appendix to the draft decision. These data are included given the possibility of CRC to process the received in accordance with Decision No 119 of 19.01.2012 questionnaires and with a view to receiving an opportunity for further examination of trends for development of the relevant markets. The draft decision of the Communications Regulation Commission is presented for a second consultation to the stakeholders and is published on the CRC’s website under the section “Public consultations’." (see CRC's press release).

Commission clears Ericsson/Technicolor business services concentration

The European Commission cleared  Ericsson's acquisition of Technicolor's business services segment (see the decision).

Commission opens phase II for Hutchison's take-over of Orange Austria

"The European Commission has opened an in-depth investigation under the EU Merger Regulation into the planned acquisition by Hutchison 3G Austria ("3") of its competitor Orange. Both companies provide mobile telephony services in Austria.

The Commission’s initial market investigation has found that the proposed acquisition may create significant competition problems by removing Orange as a competitor in the retail market for end consumers and on the wholesale market for network access and call origination" (see the Commission's press release).

Commission's Art. 7 Comments to Maltese NRA on its proposed new MTRs

The European Commission, made the following comments in its decision addressed to MCA on the latter's review of the mobile call termination rates:

"Need for a timely price control obligation ensuring efficient cost-oriented termination rates 

The Commission notes that for the period from 1 July 2012 until the adoption of the pure BU-LRIC model (expected before 30 June 2013), MCA proposes to set MTRs on the basis of a benchmarking method.

While acknowledging the reasons why MCA is not in a position to conclude the development of a BU-LRIC model for mobile call termination by 31 December 2012, the Commission underlines that the purpose of Recital 22 and of Recommend 12 of the Termination Rates Recommendation is to enable NRAs, in the event of limited resources, to arrive at 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 the average MTRs of those Member States which have implemented the recommended cost methodology. Furthermore, the rates used for benchmarking should represent the cost-efficient target rates at the end of the respective glide paths, but not the rates at a certain point along the glide paths. Such an approach has also been recently endorsed by BEREC.

In the present case, the Commission observes that the proposed benchmarking method does not seem to be consistent with the Termination Rates Recommendation.

First, the Commission notes that the rates to apply as of 1 July 2012 and until the BU-LRIC model is applied are interim rates between the current and the target rate so cannot correspond to the target rate as such.

Secondly, the Commission notes that, for calculating the target rate, MCA does not benchmark the cost-efficient rates at the end of the respective glide paths, but rather the intermediate rates applying on 31 December 2013. Furthermore, MCA bases its benchmark on information disclosed in the BEREC MTR snapshot report of January 2012. The Commission notes that this report does not contain information — which is reliable and readily available — on all rates in the Member States that have adopted the recommended pure BU-LRIC methodology.

As a consequence of the method chosen by MCA, the calculated MTRs to be applied until the BU-LRIC model is implemented will be set above the average of the MTRs set in Member States implementing the pure BU-LRIC model.

The Commission also takes note of MCA’s strong commitment to implement its BU-LRIC model for mobile call termination by 30 June 2013 at the latest, subject only to unforeseen circumstances related to the procurement process.

Against this background, in order both to bring the benefits of lower MTRs more quickly to consumers and to avoid excessively steep drops in MTRs at the end of the transition, the Commission calls upon MCA to modify its benchmarking method in such a way that it would lead to reduced MTRs, in line with the Termination Rates Recommendation, already in the period preceding the implementation of its BU-LRIC model. To this end, MCA would have to include all readily available and reliable information on effective target MTRs, as calculated by all NRAs that have developed the recommended cost methodology, and apply such a target rate, rather than an interim rate on a glide path, as of 1 January 2013 at the latest, the deadline in the Termination Rates Recommendation.

The Commission reminds MCA that, should its price control remedy for the period following 1 July 2013 deviate from EU law and the principles of the Termination Rates Recommendation, the Commission could open a phase II investigation pursuant to Article 7a of the Framework Directive."

Following the Commission's comments, the MCA notified the final adoption of its decision on MTRs, leading to an interim rate of 2.07€, and the rate of 1.03€ as an indicative target.

Gerrman NRA finds coverage requirement in 800 MHz band fulfilled in Saxony-Anhalt and Thuringia

"Mobile operators have now also met the coverage obligation in the 800 MHz in Saxony-Anhalt and Thuringia. The three companies, Telekom Deutschland GmbH, Vodafone D2 GmbH and Telefónica Germany GmbH & Co. OHG are now able to freely use the frequencies they purchased in the 800 MHz band there too." (see the BNetzA's press release).

Thursday, 28 June 2012

EBU issues Recommendation on 700MHz preparing for WRC-15

"The EBU today published a new recommendation on spectrum management, representing an important milestone in preparing for the next ITU World Radiocommunication Conference (WRC-15). The recommendation affirms the importance of terrestrial broadcasting in EBU Member markets, pointing out that there are large differences between each of these. Such differences should be taken into account when planning the way that the UHF band is used in future.

...

The EBU also stresses the importance of ensuring that the UHF band (including the 700MHz band) should be retained for the delivery of broadcasting services (both linear and non-linear). This is particularly important as the EBU and its Members are working to facilitate a close integration between the linear and non-linear services they deliver to mobile devices, PCs, tablets and hybrid television sets." (see EBU's relevant page).

Commission's Art. 7 Comments to the Czech NRA's proposed MTRs glidepath

The European Commission made the following comments in its decision, addressed to the Czech NRA, on the latter's proposed mobile termination rates glidepath:

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

The Commission acknowledges that as from the 1 January 2013, possibly for another three months, ČTÚ proposes to set termination rates on the basis of a FAC method.
 

The Commission points out that the purpose of Recital 22 and of Recommend 12 of the Termination Rates Recommendation is to enable NRAs with 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, when an alternative methodology is chosen, it should generate efficient outcomes consistent with the Recommendation and with a competitive market. Outcomes resulting from the application of an alternative methodology should not exceed the average of the termination rates set by those Member States which have implemented the recommended cost methodology as of 1 January 2013.
 

However, the Commission underlines that by using a FAC method, even if the cost considered are only those directly related to the termination service, operators which are compensated for the actual costs incurred for termination have few incentives to increase efficiency. Therefore, the resulting tariffs do not represent the cost efficient target rates as would be the case under a pure BU-LRIC model. As a consequence, the proposed MTRs will be set, also after the 1 January 2013, significantly above the average of MTRs set in Member States already implementing the pure BU-LRIC model.
 

The Commission also takes note of ČTÚ 's assurance to implement its pure BULRIC model as from the beginning of 2013 and to implement the new tariffs by the first quarter of 2013.
 

Against this background, and in order to bring more quickly the benefits of lower MTRs to consumers and avoid excessively steep drops in MTRs at the end of the  transition, the Commission urges ČTÚ to accelerate the process of implementation of the BU-LRIC model in a way that it would lead to cost efficient MTRs already as from 1 January 2013, in line with the Termination Rates Recommendation.
 

The Commission reminds ČTÚ that if it were to propose a new price remedy, 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.


Need of a price control obligation on the fourth mobile operator

The Commission observes that the proposed regulation concerns only three mobile operators operating in the Czech Republic, and ČTÚ intends not to impose a price control obligation on Mobilkom, the fourth operator.
 

The Commission stresses that that even if Mobilkom's termination rates have so far followed the three larger operators' regulated prices and that there are currently no asymmetries between operators, an asymmetry of termination rates may still arise with the implementation of the currently proposed new rates, or with the application of the BU-LRIC model currently in preparation.
 

The Commission points out the need to bring all mobile termination rates towards an efficient level in a transparent and predictable manner and would therefore like to invite ČTÚ to impose a price regulation in line with that imposed on the other three operators and the Termination Rates Recommendation also on MobilKom."

UK Law Commission consults on Electronic Communications Code

"We published a Consultation Paper on the Electronic Communications Code on 28 June 2012.

The Code sets out the regime that governs the rights of electronic communications operators to install and maintain infrastructure on public and private land.  In our Consultation Paper we discuss the current law and set out a number of provisional proposals and options for reform on which we invite consultees’ views.

Our Consultation Paper considers all the main provisions of the current Code. Areas highlighted for potential reform include:

  • the rights of operators and landowners under the Code, and the position of third parties;
  • operators’ obligations under the Code and related regulations;
  • the test applied to determine whether code rights are granted to an operator where a landowner objects;
  • the measure of the financial award to be paid to the landowner where an operator is granted code rights;
  • the appropriate forum for the resolution of disputes, and other procedural issues;
  • the interaction between the Code and other statutory regimes" (see the Law Commission's relevant page).

Viasat found by Danish NCA to have violated a decision subject to conditions

"On September 30 2009, the Council decided that Viasat’s business terms regarding the distribution of the TV-channels TV 3 and TV 3+ in cable networks were an infringement of section 6 of the Danish Competition Act and Article 81 of the EC Treaty.  

The Council found that the business terms restricted open competition between the TV-channels concerning the acquirement of the most favorable package placements, because Viasat’s business terms reserved the most favorable package placement for commercial TV-channels - in the second package - for Viasat’s own TV-channels. Thereby, the business terms had the ability of squeezing competing channels out of the second package.

As a consequence, the Council decided that Viasat must cease preconditioning package placements in all of their business terms and also cease preconditioning other terms that have similar anticompetitive objectives and effects.

The decision subject to conditions imposed by the Danish Competition Council was affirmed by the Danish Competition Appeal Tribunal and The Maritime and Commercial Court. 

Viasat has violated the decision subject to conditions by including a requirement in some of the conditions between Viasat as broadcaster and the local Danish cable networks that has anticompetitive objectives and effects.

The requirement states that the local cable networks have to pay for a standard package including the TV-channels TV 3, TV3+ and TV3 Puls for all households receiving anything but must carry channels. Thus, the payment is required even though the households may not wish to receive Viasat’s TV-channels.

Since most households in the concerned local cable networks have to pay for the standard package, the requirement is capable of having the effect that the local cable networks give all of Viasat’s TV-channels in the standard package the most favorable package placement – ensuring that the households who are already paying for the channels also receive them. The requirement thus has similar anticompetitive objectives and effects as did the business terms included in the 2009 case.

The local cable networks have reported to the Danish Competition and Consumer Authority that they have not been offered a negotiation of the business terms" (see the NCA's full press release).

Tuesday, 26 June 2012

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

The European Commission's made the following comments, in its decision addressed to the Slovakian NRA, on the latter's modified remedies in the fixed call origination and termination markets:

"Need to ensure non-discriminatory interconnection for all market players

The Commission notes that the incumbent operator's RIO now includes provisions which allow ANOs to choose between interconnection models, but leaves the incumbent to agree on the technical feasibility of the ANO's preferred model. The RIO does not appear to explicitly cover or mandate forms of interconnection as those agreed upon commercially between Slovak Telekom and MNOs.

In this respect the Commission questions the current practice according to which MNOs have a different and possibly more flexible and advantageous interconnection regime with the incumbent when compared to the interconnection regime which applies between the incumbent and ANOs.

The Commission stresses that the proper implementation of a non-discrimination remedy would normally oblige Slovak Telekom to offer to all market players equivalent economical and technical conditions for interconnection. 

In this regard the Commission asks the TÚSR to analyse to which extent the interconnection services offered to MNOs should also be offered to ANOs and whether the current practice of interconnecting ANOs on a parameterized basis only could be the result of discriminatory treatment.
 

Should the technical and economic conditions of interconnecting MNOs and ANOs indeed call for different interconnection regimes, the Commission asks the TÚSR to ensure that those ANOs which fulfil the technical preconditions for nonparameterised interconnection can interconnect in that manner (just as MNOs) without being subject to a potentially arbitrary technical feasibility assessment carried out by the incumbent. In this respect the TÚSR should assess whether nonparameterized interconnection should be explicitly included and mandated in a RIO."

Commission's Art. 7 Comments to the Czech NRA on the latter's price control remedy in the WPNIA market

The European Commission, made the following comments, in its decision, addressed to ČTÚ, on the latter's price control remedy to be imposed in the wholesale physical network infrastrucure access market:

"Forthcoming guidance on costing methodologies

The Commission notes that ČTÚ proposes to use two different costing methodologies for setting copper local loop unbundling and collocation services' price caps (i.e. the LRIC model for setting the monthly fees and the ABC model for the one-off fees). In its reply to the request for information, ČTÚ explains that this approach will probably remain after the completion of a new LRIC cost model, which is currently under development. Within the LRIC model assets are valued on the basis of CCA where the gross asset value (rather than the net asset value) is applied.

The Commission further observes that the CCA based copper valuation is subject to an evolution of copper prices which might be very volatile, with a moderate reduction followed by a sharp rise in the next year. This approach could be detrimental to the predictability of the regulation of access prices.

Finally the Commission also notes that ČTÚ proposes to modify the copper lifetime in order to align it with the lifetime previously set for ducts and trenches. The Commission stresses that, absent appropriate justifications, such a proposal runs the risk of not properly reflecting the distinct economic characteristics of these assets.

Given the importance of regulating key wholesale access products in the transition period to NGA networks in an effective and consistent manner across the EU, the Commission is currently working on a recommendation on costing methodologies for key access prices. In the light of this, the Commission invites ČTÚ to review its analysis upon publication of any relevant recommendations."

Verizon and AT&T asks before French Conseil d' Etat, annulment of ARCEP's regulation of internet peering and transit agreements

Verizon and AT&T ask before French Conseil d' Etat, annulment of ARCEP's regulation of internet peering and transit agreements (see AT&T's blog post).

EP's INTA Committee sais no to ACTA as well

After the Civil Liberties, Industry, Legal Affairs and Development Committees, the International Trade Committee delivered a negative opinion on ACTA. It remains to be seen what the plenary of the European Parliament will vote for (see press release).

OFCOM issues and consults on draft code against internet piracy as obliged under the Digital Economy Act 2010

"Ofcom have today launcheed a consultation on a draft code governing the Digital Economy Act's mass notification system.

Under the system, letters will be sent to account holders whose internet connections are identified as being used to unlawfully share films, music and other copyright material.

The letters will explain what copyright is and give advice on protecting internet connections from unauthorised users.

Ofcom's code will set out exactly how this system will work.

Legislation laid in Parliament today set out details of how the system will be paid for. Costs will largely be met by rights holders, with internet service providers paying a smaller element. A £20 fee will be charged to those who formally challenge the letters, which will be refunded if the appeal is successful." (see DCMS' press release, OFCOM's press release and Sharing of Costs Order relevant page).

Monday, 25 June 2012

BASE achieves 3g coverage obligation in Belgium

BIPT, the Belgian NRA, after instigating an infringement procedure, has verified that the mobile operator BASE, has achieved the condition of 85% coverage of national territotry with UMTS technology (see the press release, in french).

OFCOM consults on its notice of proposals to make Wireless Telegraphy Trading and Register Regulations

"1.1 This document consults on the following draft regulations:
  • the Wireless Telegraphy (Spectrum Trading) Regulations 2012 (the ‘Proposed Trading Regulations’), that would revoke and replace the Wireless Telegraphy (Spectrum Trading) Regulations 2004, as amended; and
  • the Wireless Telegraphy (Register) Regulations 2012 (the ‘Proposed Register Regulations’), that would revoke and replace the Wireless Telegraphy (Register) Regulations 2004, as amended.
1.2 The Proposed Trading Regulations would remove the need for Ofcom to consent to a transfer of rights to use spectrum, in most instances, implementing Ofcom’s decision outlined in our statement “Simplifying spectrum trading” published 29 June 2011 (the ‘Simplification Statement’).

 1.3 These draft regulations would also extend the ability to transfer all or part of the rights to use spectrum under a Wireless Telegraphy Act 2006 (the ‘WT Act’) licence to the maritime and satellite earth station licence classes. The regulations would implement Ofcom’s decisions outlined in our statements “Statement on Authorisation regime for GNSS repeaters” published June 2012 and “Authorisation of terrestrial mobile networks complementary to 2 GHz mobile satellite systems (MMS)” published July 2009.

1.4 These changes would 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 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 OFCOM's related page).

EETT approves OTE's WBA and WLL Reference Offers

The Greek NRA has approved the incumbent's reference offers on wholesale broadband access (in greek) and wholesale leased lines (in greek).

Commission refers Poland to Court for not fully implementing AVMS Directive on on-demand services and asks for fine

Taking advantage of the new provisions of the LisbonTreaty, "The European Commission has decided to refer Poland to the EU Court of Justice for failing to fully implement EU audiovisual media services Directive. Poland has partially implemented the Directive but not the provisions concerning on-demand services. This means that providers of such services are not obliged to protect viewers, especially children, from hidden advertising (such as subliminal advertising) or from content containing incitement to hatred. Nor does Poland respect the rules on the European content of services provided on-demand. Poland should have implemented the Directive in full, including the rules for on-demand services, by December 2009.

The Commission proposes a daily fine of € 112 190.40 which would be paid as from the date of the Court's affirmative ruling until Poland notifies the Commission that it has fully implemented the rules into national law.

These financial penalties are proposed under the Lisbon Treaty and take into account the duration and the gravity of the infringement and the size of the Member State" (see the Commission's full press release).

Friday, 22 June 2012

Commission sends Estonia a Reasoned Opinion over NRA independence issue

"The European Commission has sent a formal request to Estonia to comply with EU rules that require a clear separation between the bodies which regulate telecoms markets and those providing telecoms services. This separation is essential to preserve the impartiality of national telecoms regulators, guaranteeing fair regulation for consumers and businesses and maintaining competition. 

According to EU telecoms rules, national authorities exercising regulatory tasks cannot at the same time be involved in the ownership or control of telecoms companies.

In Estonia, the Ministry of Economic Affairs and Communications manages radio frequencies, numbering resources and provision of universal service. However at the same time it exercises control of the state-owned company Levira Ltd, which provides telecoms services, such as broadcasting and wireless broadband access.

The European Commission opened infringement proceedings against Estonia in September 2011 for not respecting the principle of separation between management of telecoms rules and ownership of the entity which provides telecoms services.

The formal request to Estonia takes the form of a 'reasoned opinion' under EU infringement rules. Estonia now has two months to inform the Commission of measures taken to comply with EU rules. If it fails to do so, the Commission may refer Estonia to the EU's Court of Justice." (see the Commission's full press release).

Wednesday, 20 June 2012

Commission consults on state aid general block exemption regulation

"In the context of its state aid modernisation initiative (SAM) ..., the European Commission has launched the review of the general block exemption regulation (GBER) which exempts certain categories of aid from the obligation of prior notification to the Commission .... The review starts with a public consultation, seeking stakeholders' views on the functioning of the regulation since its entry into force in 2008. In light of the submissions received and its own experience in applying the Regulation, the Commission will propose a revised draft regulation in 2013, with a view to contributing to the objectives of SAM. Submissions can be made until 12 September 2012" (see the press release and consultation page).

Tuesday, 19 June 2012

Commission opens phase II on FICORA'S WBA and WPNIA remedies and specifically the absence of strict price control - UPDATE

"The European Commission has decided to further investigate whether the Finnish telecoms regulator, FICORA, should allow regional Finnish telecoms operators to give alternative operators access to their broadband networks without proper pricing regulation. The Commission has, inter alia, serious doubts whether FICORA's decision not to impose cost-oriented prices for access to fibre networks of dominant operators in Finland contravenes EU telecoms rules. In the Commission's view, FICORA's decision could have a negative effect on competition and the future development of fibre and copper networks. Current prices for fibre local loops are already high. This suggests that dominant operators, without proper regulation, are in a position to charge access rates at excessive levels. As a consequence of the proposed regulatory approach, those operators who would normally immediately obtain access to regulated fibre-based products, may have to open dispute settlement procedures (delaying the price implementation) or wait for FICORA's intervention. In both scenarios market entries may be significantly delayed. The Commission has therefore suspended UKE's" (obviously, the Commission is quite used to confronting the Polish regulator...) "plans and started a 3 month investigation.

...

FICORA identifies 111 regional relevant markets for wholesale broadband access and wholesale physical network infrastructure access, which alternative operators need to provide their own internet services, and finds almost all of them to be non-competitive.

With regard to wholesale physical network infrastructure access, FICORA proposes to set maximum prices for access to copper based services provided by the 8 largest operators with significant market power (SMPs). However, no price cap for fibre based physical access is envisaged. With regard to the remaining 19 SMP operators, FICORA intends to impose only access, transparency and non-discrimination obligations.

As regards the market for wholesale broadband access, only access, transparency and non-discrimination obligations for connections above 8 Mbit/s are planned for all operators. The Commission has concerns that different treatment of lower speed broadband access within the boundaries of the same product market might result in a distortion of competition, in particular where no regulatory obligation is prescribed at all for such low speeds.

The Commission has issued a "serious doubts" letter because it believes that this fragmented regulatory approach requires further discussion with other European regulators." (see the Commission's full press release). 


On the other hand, the Finnish NRA states that it has limited powers to impose immediately strict price control, that such a remedy is not proportional to the problems faced in the market and that as regards the light remedies imposed on 19 local operators, that there is a feeling that the European Commission has exceeded its powers. FICORA's press release reads as follows:

"... FICORA agrees with the Commission about the competitive problems in the local loop market and about the need for stricter regulation. However, FICORA's powers are not sufficient to impose the obligations. 'According to the Finnish Communications Market Act, FICORA must first try out whether lighter pricing obligations work and are sufficient. Only after that FICORA may impose stricter obligations, for example pre-determined price caps for fibre-optic connections,' says FICORA Director-General Asta Sihvonen-Punkka. With respect to the wholesale broadband market, FICORA thinks that the stricter pricing regulation required by the Commission is not in proportion to the nature of the competitive problems.

In addition, the Commission disapproves FICORA's proposal on lighter regulation for 19 small telecoms operators. The Commission requests that heavy pricing obligations are imposed on all telecoms operators with significant market power irrespective of the size of the operator or the significance of the problem. According to FICORA, the significance of the 19 local telecoms operators is small with regard to the internal market and trade between Member States. Therefore, draft decisions regarding these operators should not be subject to Commission's opinion. 'It is likely that the Commission is exceeding its powers when it intervenes in the obligations proposed for these operators,' Sihvonen-Punkka maintains. FICORA has complied with the directive and notified the Commission of the draft decisions concerning telecoms operators that are relevant to the internal market. FICORA states that there are eight of these.

The European Commission has no opportunity to request Member States to alter the imposed obligations, but if it wishes, it may delay the issuance of the final decisions. According to the Finnish Communications Market Act, FICORA must delay the issuance of the decisions by three months in case the Commission so requests. In addition, FICORA must in such a case continue preparing the decision in close cooperation with the Commission and the Body of European Regulators for Electronic Communications (BEREC).
".

UPDATE (26/06/2012): Commission's Decision to open phase II available.

UPDATE (01/08/2012): BEREC's Opinion made public:

"1. EXECUTIVE SUMMARY
 

On 18th of May 2012, the Commission registered a notification by the Finnish national regulatory authority, Viestintävirasto (hereinafter FICORA), concerning the markets for physical network infrastructure access (market 4) and wholesale broadband access (market 5) in Finland.
 

In the relevant market 4, FICORA proposes to include metallic and optical fibre local loops and sub loops, shared access, dedicated wavelength and equipment facilities. Market 5 includes DSL and Ethernet wholesale products, as well as self-supplied cable.
 

FICORA identifies 111 regional markets for both markets 4 and 5.
 

With regard to market 4, FICORA designates 27 operators as having SMP in all the 111 regional markets, and intends to impose the following obligations on 8 operators designated with SMP in their respective operating areas: access to local loop for copper and fibre loops; transparency; non-discrimination; cost orientated pricing price cap for copper but without price cap for fibre; cost accounting obligation.
 

FICORA has decided not to submit the decisions on obligations for the remaining 19 SMP operators in market 4 for notification.
 

With regard to market 5, FICORA proposes to designate 27 operators as having SMP in 104 regional markets, whereas the remaining 7 markets are considered to be competitive. FICORA intends to impose the following obligations: access to local loop transmission capacity and equipment facilities; transparency; non-discrimination obligation concerning pricing and other terms.

The obligations will apply only with regard to wholesale broadband services with a capacity of 8 Mbit/s and above.
 

On 18th of June 2012 the Commission sent a serious doubts letter opening a phase II investigation pursuant to Article 7a of Directive 2002/21/EC as amended by Directive 2009/140/EC. Commission’s doubts concern:
- Non imposition of appropriate price control for fibre infrastructure in market 4
- Non imposition of price control obligation for copper and fibre infrastructure in
market 5
- Lack of price control for copper based local loop unbundling services for 19 SMP operators
- Lack of remedies to be imposed for wholesale bitstream services below 8 Mbit/s
 

Based on the Framework Directive, as amended, BEREC is issuing the current opinion on the serious doubts expressed by the Commission in accordance with article 7(a). On the basis of the assessment set out in this Opinion, BEREC considers that the Commission’s serious doubts are mostly justified.
 

Regarding the non-imposition of price control in market 5 for copper and fibre lines, BEREC recommends FICORA to impose a price control obligation on all SMP-operators in this market.

Regarding the lack of price control for copper based local loop unbundling services for 19 SMP operators, the remedies decisions for these operators have not been registered for notification by FICORA. BEREC´s assessment is that a matter of whether or not a national regulatory authority has fulfilled the information requirements of article 7(3) is not to be subject to examination by BEREC within this context. Moreover, the information at BEREC’s disposal is not sufficient to understand FICORA´s motives for not imposing a price control obligation on the operators in question. Hence, BEREC cannot express an opinion on this issue.
 

Regarding the lack of remedies to be imposed for wholesale broadband access services below 8 Mbit/s, BEREC recommends FICORA to impose appropriate remedies without taking the availability of mobile data services into consideration."


UPDATE (18/10/2012): Commission issues Recommendation (see press release).


UPDATE (02/11/2012): FICORA amends its decision to comply with the Commission's Recommendation (see press release).


UPDATE (04/12/2012): FICORA finalises its decision (see press release).

Monday, 18 June 2012

Commission's 2012 Scoreboard is out

Just a few days before the digital assembly, the European Commission, has released its 2012 scoreboard (see the relative page, and press releases here and here).


MCA launches WBA market review

The Maltese Authority consults on its review of the wholesale broadband access market (see MCA's relative page).

Irish NRA consults further on price regulation of bundled offers

ComReg has decided to proceed to further consultation on price regulation of bundled offers focusing on the issue of appropriate Larger Exchange Areas as defined in the first consultation.

OFCOM launches Business Connectivity Market Review

OFCOM has launched its review of the retail leased lines, wholesale symmetric broadband origination and wholesale trunk segments markets (see related page).

BT appeals OFCOM's determination of Vodafone/BT dispute on call termination charges

BT has lodged an appeal against OFCOM's determination regarding its dispute on MTRs with Vodafione, alleging that OFCOM erred in its interpretation of CAT's MTRs judgment  (see CAT's page).

UK's Competition Commission consults on draft guidelines for market investigations

UK's Competition Commission has made pulic and consults on its draft guidelines for market investigations (see CC's relative page and press release).

Wednesday, 13 June 2012

Commission clears Birmingham's ultra-fast broadband network state aid plan - UPDATE

"The European Commission has found a proposal by the United Kingdom to grant around 6 million of public financing for the construction of an ultra-fast broadband network in the city of Birmingham to be in line with EU state aid rules, in particular because it will be genuinely open to all operators and will therefore promote competition.

...

The target areas of the measure are two districts in Birmingham where private operators have no or very limited investment plans in the next three years. This means that in the absence of this project most consumers would only be able to use basic broadband services or very expensive business leased line services.

The Commission's investigation found that the ultra-fast network of Birmingham was designed in a pro-competitive manner, exceeding in several respects the requirements of the EU Broadband Guidelines. In particular, open access will be granted for at least 25 years for alternative operators, whereas the guidelines require only seven years. Moreover, the network will be operated on a wholesale basis so as to ensure more competition at retail level. Finally, all possible wholesale access products will be offered to third party operators, including dark fibre, which is one of the most pro-competitive wholesale access products." (see the full press release).

UPDATE (23/07/2012): Letter on approval of plan made public.

Commission proceeds to Recommendation to OPTA on MTRs case - UPDATE

"The European Commission has decided to require the Dutch telecoms regulator (OPTA) to amend or withdraw a fixed and mobile termination rates proposal which would negatively affect consumers in the Netherlands. Termination rates are the rates which telecoms networks charge each other to deliver calls between their respective networks. These costs are ultimately included in call prices paid by consumers and businesses. This is the first time that the Commission has issued a recommendation under Article 7a of the Telecoms Directive.

...

In 2010, OPTA initially proposed cost-oriented fixed and mobile termination rates which were in line with the Commission's 2009 Recommendation.... Following an appeal brought by certain telecoms operators, these rates were overturned in August 2011 by the Dutch Trade and Industry Appeals Tribunal which prescribed a different methodology that includes costs not directly related to call termination. Following this ruling OPTA proposed new rates, and in doing so triggered the Commission's 2012 investigation ....

The Commission's decision follows a three month investigation during which BEREC, the body of European Telecoms Regulators, expressed support for the Commission's position." (see the full press release).

On the other hand OPTA claims, its hand are tied by the Court ruling (see the Dutch NRA's press release).

UPDATE (26/06/2012): The Commission's Recommendation was made public.

EETT consults on amendments and consolidation of number protability regulations

In view of the new law trasposing the telecoms package, EETT has launched its consultation as regards the consolidation into a single regulation (in greek) of number portability provisions and on the necessary amendments to number portability provisions as provided by the new legislation (see the press release, in greek).

EETT notifies MTRs to the Commission

The Greek NRA has set under consultation its draft decision on mobile call termination market.

The proposed rates read as follow (benchmarking adopted - the updated LRIC cost model will soon be allegedly ready):


July 2012 01/08/2012 01/11/2012 01/04/2013
Proposed MTRs  (euro/minute) 4,95 3,60 2,30 1,03


See EETT's press release and the notified document pack, all in greek.

CNC instigates infringement proceedings against Mediaset for alleged violation of commitments in Telecinco/Quatro merger case

"As a result of the Investigation Division's proceedings to monitor compliance with the Resolution of 28 October 2010, the CNC Council handed down a further Resolution on 6 June 2012, finding that MEDIASET had breached a number of the commitments it had voluntarily entered into, commitments which enabled the TELECINCO / CUATRO merger to proceed. Specifically:
 

•  With respect to commitment (iii), the CNC Council held that MEDIASET had breached the requirement for PUBLIESPAÑA and PUBLIMEDIA to be functionally separate from each other, as the same persons were members of the managing bodies of both.
 

• As regards commitments (vi) and (xii), the CNC Council stated that MEDIASET had unjustifiably delayed waiving its pre-emptive rights to acquire audiovisual content and had also procrastinated in granting option rights for adjustments to the term of contracts in force (in some cases, this was not offered at all). Furthermore, MEDIASET had included prohibited clauses in certain contracts for the acquisition of audiovisual content.
 

• Lastly, the CNC Council found there to be prima facie evidence that MEDIASET had breached commitment (ii), as it had implemented a strategy to link, de facto, the sale of advertising on its channels, a strategy strengthened by the recent introduction of a new advertising sales model by MEDIASET.
 

In light of the foregoing, the CNC Council instructed the Investigations Division to bring infringement proceedings in respect of the instances of non-compliance it had identified." (see the Spanish NCA's press release).

Tuesday, 12 June 2012

AG Bot's Opinion in the Sky Österreich case

AG Bot has delivered his Opinion in case C-283/11, and its conclusion read as follows:

"Examination of the question referred has not disclosed any factor such as to affect the validity of Article 15(6) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)."

In essence, AG Bot considers that the infringement of freedom to conduct a business and the right of property by Article 15(6) of the AVMS Directive, which provides for limited compensation for the use of sport extracts, is justified.

Art. 29 WP issues Opinion on Cookie Consent Exemption

"Article 5.3 allows cookies to be exempted from the requirement of informed consent, if they
satisfy one of the following criteria:
 

CRITERION A: the cookie is used “for the sole purpose of carrying out the transmission of a
communication over an electronic communications network”.
 

CRITERION B: the cookie is “strictly necessary in order for the provider of an information
society service explicitly requested by the subscriber or user to provide the service”.
"

Art. 29 Working Party has accordingly issued its Opinion on Cookie Consent Exemption, the sumary of which reads as follows:

"This analysis has shown that the following cookies can be exempted from informed consent under certain conditions if they are not used for additional purposes:
 

1) User input cookies (session-id), for the duration of a session or persistent cookies limited to a few hours in some cases.
 

2) Authentication cookies, used for authenticated services, for the duration of a session.

3) User centric security cookies, used to detect authentication abuses, for a limited persistent duration.
 

4) Multimedia content player session cookies, such as flash player cookies, for the duration of a session.
 

5) Load balancing session cookies, for the duration of session.
 

6) UI customization persistent cookies, for the duration of a session (or slightly more).

7) Third party social plug-in content sharing cookies, for logged in members of a social network.
 

Having regard to social networks, the working party notes however that the use of third party social plug-in cookies for other purposes than to provide a functionality explicitly requested by their own members requires consent, notably if these purposes involve tracking users across websites.
 

The working party recalls that third party advertising cookies cannot be exempted from consent, and further clarifies that consent would also be needed for operational purposes related to third party advertising such as frequency capping, financial logging, ad affiliation, click fraud detection, research and market analysis, product improvement and debugging. While some operational purposes might certainly distinguish one user from another, in principle these purposes do not justify the use of unique identifiers. This point is of particular relevance in the context of the current discussions regarding the implementation of the Do Not Track standard in Europe.
 

This analysis also shows that first party analytics cookies are not exempt from consent but pose limited privacy risks, provided reasonable safeguards are in place, including adequate information, the ability to opt-out easily and comprehensive anonymisation mechanisms.
 

Some primary guidelines can be drawn from the analysis and the cookie use scenarios presented in this opinion:


1) When applying CRITERION B, it is important to examine what is strictly necessary from the point of view of the user, not the service provider.
 

2) If a cookie is used for several purposes, it can only benefit from an exemption to informed consent if each distinct purpose individually benefits from such an exemption.
 

3) First party session cookies are far more likely to be exempted from consent than third party persistent cookies. However the purpose of the cookie should always be the basis for evaluating if the exemption can be successfully applied rather than a technical feature of the cookie.
 

Ultimately, to decide if a cookie is exempt from the principle of informed consent it is important to verify carefully if it fulfils one of the two exemption criteria defined in Article 5.3 of Directive 2009/136/EC. After a careful examination, if substantial doubts remain on whether or not an exemption criterion applies, website operators should closely examine if there is not in practice an opportunity to gain consent from users in a simple unobtrusive way, thus avoiding any legal uncertainty."

Prior notification to the Commission of the KPN/De Persgroep/Roularta/JV

"On 5 June 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 undertakings KPN Group Belgium nv/sa (‘KPN GB’, Belgium), De Persgroep NV (‘De Persgroep’, Belgium) and Roularta Media Group NV (‘Roularta’, Belgium) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the undertaking Hawaii NV by way of purchase of shares in a newly created company constituting a joint venture." (see the OJ).

Commission moves Czech regulator's plan, to lift incumbent's access obligations in certain areas, to phase II - UPDATE

"The European Commission has decided to further investigate the proposal by the Czech telecoms regulator (ČTÚ) to partially lift obligations on the main Czech telecoms operator Telefónica to give alternative operators access to its infrastructure, so they can also offer broadband. Without this access, the choice of operators offering high-speed Internet in the Czech Republic would be limited and consumers might have to pay higher prices for higher speed Internet connections. The Commission has serious doubts whether ČTÚ's proposal not to impose regulation on wholesale broadband access in municipalities where Telefónica allegedly faces more intense competition from alternative infrastructures is compatible with EU telecoms rules. The Commission also believes that ČTÚ's plans could affect trade in the EU as the conditions for access to Telefónica's copper and fibre network in the Czech Republic can determine the cost of Internet services offered by other operators in the other Member States. The Commission has therefore suspended ČTÚ's plans and started a so-called 'Phase 2' investigation.

...

ČTÚ has proposed to deregulate access to broadband in those municipalities where Telefónica allegedly faces competition from alternative cable or fibre operators, as well as Wi-Fi operators, and where its retail market share does not exceed 40%. In the rest of the municipalities, ČTÚ proposes to impose a set of remedies without including cost orientation or price control, nor affecting all types of fibre networks. Under the Commission's Recommendation on Next Generation Access Networks ..., a telecom regulator should in principle mandate wholesale broadband access remedies and give cost orientation unless certain exceptions apply.

The Commission has therefore suspended ČTÚ's plans, because it needs further proof from ČTÚ that the competition faced by Telefónica from alternative Internet service providers in certain parts of the country is sufficient to warrant a lifting of all regulatory remedies. The Commission has doubts about the competitive constraints of Wi-Fi given the fragmented nature of its providers and the customers' unwillingness to switch to cheaper services offering a lower speed in case Telefónica would increase its prices. It also notes the specificity of the Czech context where the wholesale access seekers have a limited presence. ČTÚ has not sufficiently justified why the access remedy imposed on Telefónica in the remaining areas of the Czech Republic does not include price control or cost orientation and does not concern all Telefónica's fibre network." (see the full press release).


UPDATE (13/06/2012): The Commission's decision was made available.

UPDATE (11/07/2012): BEREC's Art. 7 Opinion released. A different Opinion based on Art. 7a will be issued, concerning i.e., the serious doubts of the Commission on the NRA's proposed remedies. BEREC does not pose objections as regards the NRA's product market definition, under which the NRA included WiFi and cable in the WBA market for exerting indirect constraints and the NRA's geographic market definition, under which two geographic relevant markets are identified. 

UPDATE (25/07/2012): BEREC issued its Opinion as regards the phase II Czech case regarding the remedies to be imposed in the wholesale broadband access market.

It aligned its concerns with the Commission's concerns, on the lack of cost orientation as well as on the lack of clarity as to whether FTTx part of Telefonica's network is under an access obligation too.

Monday, 11 June 2012

Commission services' discussion paper on the future use of the 700 MHz band in the European Union

Within the ambit of the RSPG meeting, the Commission services set under discussion a paper on the future use of the 700 MHz band in the European Union in light of the "agreement at the 2012 World Radiocommunication Conference (WRC-12) to allocate the 700 MHz band1 to wireless broadband (WBB) alongside broadcast services in ITU Region 1 with immediate effect after WRC-15".

French Conseil d' Etat, confirms ARCEP's market analysis of market 5

The French Supreme Administrative Court, rejected BT's action against ARCEP's analysis of the wholesale broadband access market.

EDPS issues Opinon on Smart meters

"On Friday 8 June 2012, the European Data Protection Supervisor (EDPS) adopted his opinion on the Commission Recommendation on preparations for the roll-out of smart metering systems, which gives guidance to Member States to prepare for the roll-out of these systems.
 

While the Europe-wide rollout of smart metering systems may bring significant benefits, it will also enable massive collection of personal data which can track what members of a household do within the privacy of their own homes, whether they are away on holiday or at work, if someone uses a specific medical device or a baby-monitor, how they like to spend their free time and so on. These patterns can be useful for analysing our energy use for energy conservation but together with data from other sources, the potential for extensive data mining is very significant. Patterns and profiles can be used for many other purposes, including marketing, advertising and price discrimination by third parties.
 

In light of these risks, the EDPS welcomes the efforts by the Commission to provide guidance to Member States. In particular, the EDPS supports the plan to prepare a template for a data protection impact assessment and submit it to the Article 29 Data Protection Working Party for advice." (see the press release and Opinion).

Friday, 8 June 2012

Council reaches agreement on CEF

"The Council agreed on a partial general approach on a draft regulation establishing the Connecting Europe Facility (CEF), the future funding instrument for the trans-European networks (TEN) in the fields of transport, energy and telecommunications. The draft regulation determines the conditions, methods and procedures for the Union's financial contribution to TEN projects, while the development strategies, the priorities and the implementation measures for each of the sectors are defined in sector-specific policy guidelines which will be adopted separately. The Council has already agreed on a general approach on guidelines for the transport sector (TEN-T guidelines: 8047/12). The energy and telecommunications guidelines, however, are still under discussion" (see the Council's press release and the Commission's press release too).

CAT grants permission to appeal its mobile call termination ruling with limited scope though - UPDATE

CAT has granted the four applicants (BT, EE, Hutchison 3g and Vodafone) permission to appeal its judgement on mobile call termination (see related page) on the question of "Whether the Tribunal erred, in paragraphs 195 to 231 of the Judgment, in holding that the Commission is obliged, when determining price control matters referred to it by the Tribunal, to decide those matters in accordance with the evidence before it" (see related page).



UPDATE (24/03/2013): Court of Appeal rejects appeal (see decision).

Wednesday, 6 June 2012

EETT consults on a new regulation as regards licensing of antenna strucures installation on land

EETT has launched its consultation on a new regulation (draft available in greek) as regards licensing of antenna strucures installation on land (see also the press release, in greek).

Tuesday, 5 June 2012

Ericsson/Technicolor Broadcasting Services concentration notified to the Commission

The European Commission received the prior notification of Ericsson's acqusition of Technicolor Broadcasting Services.

Vodafone/Cable & Wireless Worldwide concentration notified to the Commission

The European Commission received the prior notification of Cable & Wireless acquisition by Vodafone.

Commission consults on procedures for notifying and acting on illegal content hosted by online intermediaries

The European Commission has launched a consultation on procedures for notifying and acting on illegal content hosted by online intermediaries (see related page).

Commission blocks BNetzA's plan to regulate and impose price control in high bandwidth leased lines market - UPDATE

"The European Commission has put on hold, pending further investigations, plans of the German telecoms regulator (BNetzA) to set price levels for dedicated secure lines of ultra-fast broadband lines that are rented out to competitors- so-called "very high bandwidth leased lines", which the incumbent German telecoms operator, Deutsche Telecom (DT), can charge alternative operators.

This type of line is mainly used by operators to provide businesses such as banks, insurance companies or hospitals with robust telecoms systems linking different locations. The Commission has serious doubts if BNetzA's proposal to impose cost-oriented prices for access to leased lines with a bandwidth of above 155 Mbps is compatible with EU telecoms rules, and has requested more information justifying the proposal.

...

The EU telecoms rules require a national regulatory authority to impose proportionate remedies based on the nature of the specific problem identified. This means that regulators must not regulate in markets which are already competitive.

The Commission has issued this letter of serious doubts because further justification is needed from the German regulator that the proposed price regulation is both appropriate and proportionate. The Commission questions, in particular, the need for continued regulation given that the BNetzA itself notified the Commission at the end of 2011 that the market for very high bandwidth leased lines in Germany is now competitive. The Commission has therefore suspended BNetzA's plans and begun a 3 month investigation" (see the full press release).

UPDATE (06/06/2012): Measure withdrawn (see the notice).

UPDATE (08/06/2012): Commission's decision was made available.

Commission proposes Regulation to enable cross-border electronic signatures

"The European Commission has proposed new rules to enable cross-border and secure electronic transactions in Europe. The proposed Regulation will ensure people and businesses can use their own national electronic identification schemes (e-IDs) to access public services in other EU countries where e-IDs are available. It also creates an internal market for e-Signatures and related online trust services across borders, by ensuring these services will work across borders and have the same legal status as traditional paper based processes. This will give full effect to the major potential savings of eProcurement.

The proposal fully respects both existing national ID systems and the preferences of those Member States without national ID schemes. It allows countries with e-ID to opt-in or to remain outside of the European scheme. Once a Member State notifies that they wish to join the pan-European scheme, they must offer the same access to public services via e-ID that they offer to their own citizens" (see the full press release).

Telekom Austria/Yesss! merger notified to austrian nca

The Austrian Competition Authority received the notification of the merger between Telekom Austria and Yesss! (see the press release).

German NCA deploys electronic whistleblowing system

"...the Bundeskartellamt has implemented an electronic system which allows it to receive anonymous tip-offs of cartel law infringements. The system has proved effective over many years of practice by certain land criminal police offices. It guarantees the anonymity of informers while still allowing for continual reciprocal communication with investigative staff at the Bundeskartellamt via a secure electronic mailbox" (see the press release).

Friday, 1 June 2012

EETT approves OTE's WBA Reference Offer - VDSL retail product awaits approval

EETT has approved in its plenary, the incumbent's RO as regards its wholesale adsl and vdsl product. In its press release, the regulator mentions that the next step for the launch of OTE's retail vdsl product, is the transmission of the latter of its proposed retail prices and all relevant info for the "packages" to be approved.

EETT consults on its draft Regulation on an observatory of electronic communications products' and services' prices

EETT consults on its draft Regulation on an observatory of electronic communications products' and services' prices (see related page, in greek).

Cypriot Ministry consults on evaluation methods of public exposure to electromagnetic field

Cupriot Ministry of Communications and Works, has launched its consultation on evaluation methods of public's exposure to electromagnetic field (see prelated page, in greek).

French DPA, in lead of Art. 29WP's investigation on Google's privacy policy, sends additional questionnaire

"CNIL sends an additionnal questionnaire on Google's new privacy policy due to insufficient answers" (see press release).

ICO consults on new anonymisation code of practice

ICO consults on new anonymisation code of practice (see press release and relevat page with documents).

ECN brief - electonic communications related cases and developments

In the present post, all cases and developments related to the electronic communications sector as included in the European Competition Network's publication (for subscription click here), will be mentioned, many of which have already been mentioned in older posts in this blog:

- Denmark: Network Sharing Agreement in Telecoms Sector (see here).
- Greece: Commitments in Digital Satellite Pay-TV Case (see here).
- Germany: Green Light for current Marketing Model of Football League Media Rights (see here).
- Slovenia: Abuse of Dominant Position in Mobile Telecommunications Market (see here).
- Austria: Proposal for Amendment of Competition Law (see here).
- Finland: New Steering Group to assess Possibility of merging Competition and Consumer Authorities (see here).
- Germany: New Guidance on substantive Merger Control (see here).
- Lithuania: New Version of Law on Competition adopted (see here).
- The Netherlands: New Prioritization Guidelines (see here).
- Portugal: Recommendation to Mobile Operators on Prices of Call Origination to special Services and non-geographic Numbers (see here).
- Spain: Authority publishes Report on Bill to create National Markets and Competition Commission (see here).
- Sweden: Government initiates Inquiry into Competition Legislation (see here).
- United Kingdom: Consultation on Competition Act Procedures Guidance launched (see here).
- Ireland: New Competition Bill before Parliament (see here).
- Portugal: New Competition Act published (see here).
- United Kingdom: Competition Regime Reforms announced (see here).

Commission consults on draft revised Guidelines for broadband networks

"The European Commission is inviting comments on the application of EU state aid rules to the public funding of broadband networks. The key issue for discussion is how to adapt the current Guidelines to the objectives of the EU Digital Agenda .... In line with the Commission's state aid modernisation package ..., the proposed changes aim to ensure that state aid policy in the broadband sector focusses on facilitating well-designed aid targeted at market failures and objectives of common European interest, streamlining rules and taking faster decisions. Comments on the draft guidelines should be submitted by 3 September. On the basis of the comments received, the Commission intends to adopt definitive Broadband Guidelines in December 2012.

....

In 2011, the Commission launched the review of the 2009 broadband guidelines with a first public consultation on the basis of a questionnaire and conducted an expert report on the implementation of the current rules ..... Most stakeholders found that the existing rules worked well and required no significant modifications, but considered that there was scope for more clarification. The draft Guidelines therefore aim at clarifying and simplifying the existing rules, for example by easing some conditions for investments in rural areas. 

On the other hand, all Commission legislation in this field is harmonised to fully support the objectives of the Europe 2020 growth strategy .... and one of its flagship initiatives, the Digital Agenda. As good progress has been made with regard to the objective of connecting all citizens to basic broadband networks, the focus is shifting towards facilitating the roll out of fast networks. Therefore the revised Guidelines propose to include the possibility of supporting ultra-fast broadband networks (with speeds above 100 mbps) under certain conditions. 

The revised rules also aim at increasing transparency by asking Member States to publish all information on broadband schemes receiving state support on a central webpage or reducing administrative burden for smaller projects. Finally, the draft proposes to focus investments on infrastructure elements that are not directly related to the transmission of services, such as ducts or dark fibre (passive infrastructure). Investments into passive infrastructure are particularly expensive. If such investments are financed through public funds, the infrastructure will be available indiscriminately to all service providers who intend to enter the market. This, in turn, will foster competition, in particular for very high speed broadband networks and contribute to improving broadband services and reducing prices for European consumers. Moreover, it may attract new commercial investors to the sector, such as investment banks or pension funds" (see full press release as well as Commission's page with the 2011 findings).