Friday, 30 November 2012

Commission consults on efficiency of proceedings and accessibility of measures within the ambit of civil enforcement of IP rights

The European Commission launched its consultation on the efficiency of proceedings and accessibility of measures within the ambit of civil enforcement of IP rights (see related page).

OFT consults on Annual Plan priorities

"The OFT is seeking comments on its Annual Plan 2013-14 consultation, published today alongside its Strategic Assessment of Risks to UK Consumers and Markets" (see related page).

OFCOM's provisional conclusions on dispute relating to BT’s POLOs for 0845 call termination

OFCOM has issued its provisional conclusions on the dispute relating to BT’s POLOs for 0845 call termination.

Thursday, 29 November 2012

ENISA issues study on Proactive detection of security incidents II - Honeypots

ENISA issued a study on "proactive detection of security incidents II - Honeypots" (see related page).

ENISA issues Good Practice Guide for Addressing Network and Information Security Aspects of Cybercrime

ENISA has issued "Good Practice Guides concerning co-operation between Computer Emergency Response Teams (CERTS) and other stakeholders, primarily Law Enforcement Authorities (LEAs) within Europe" (see related page).

Tuesday, 27 November 2012

Italian Ministry of Development consults on mapping of NGA planned investments

The Italian Ministry consults on a plan to map NGA investment planned by operators till 2015, as a way to enable clarification of areas that qualify for state aid under Italy's Broadband Plan, recently approved by the Commission (see also article in medialaws.eu).

ARCEP gives WLL operators a break

"Following a call for applications in 2005, which attracted a great deal of interest from private companies and local authorities, ARCEP issued wireless local loop (WLL) licences in the 3.4 - 3.6 GHz band in 2006. The purpose of these allocations was to enable the supply of fixed internet access over radio frequencies, particularly in those parts of the country with no ADSL coverage.

When checking the status of these rollouts as of 31 December 2010, as stipulated in the terms of the licences, ARCEP ascertained - as it had already done back in 2008 - that deployments continued by and large to fall short of the commitments made by the licence-holders. ARCEP also noted that most existing systems had been deployed by local authorities as part of their public-initiative networks, to supply WiMAX-based access those areas not covered by wireline broadband solutions.

In November 2011, seven WLL licence-holders were sent a notice to comply with their rollout commitments. These procedures resulted in some operators reaching the conclusion that they would be unable to use their frequencies in the foreseeable future, and so relinquishing either all or some of that spectrum.

The first deadline attached to these notices to comply was on 30 June 2012 and concerned the firms Altitude Wireless, Bolloré Telecom and La Société du Haut Débit (SHD).

After having heard from each of these three companies during public hearings, ARCEP's Executive Board concluded that they had failed to meet their rollout obligations - to varying degrees depending on the operator and on the regions in question.

These partial deployments are due in part to delays in the industrial ecosystem, despite the expected timetables that had been agreed upon during the WLL delivery procedures. Competition from other technologies (copper pair, optical fibre, satellite, local Wi-Fi networks and 3G mobile systems) may also have hampered the sale of WiMAX solutions and slowed down deployments.

Under the present circumstances, given this band's particular ecosystem and the lack of interest coming from other players, ARCEP concluded that penalising existing licence-holders by revoking their licences would not, in the short term, guarantee optimal use of the State-owned asset that these frequencies represent. It also concluded that a financial penalty would not serve to encourage deployments or investments in these frequencies and technologies.

The Authority therefore decided not to penalise the firms SHD and Altitude, in view of the commitments they have made: either to perform rollouts in the near future, or to continue their efforts to make their spectrum available to local authorities for their public-initiative networks, or to hand back their licences for certain departments where there are no concrete plans for rollouts by either public or private players.

The Authority also decided not to penalise the firm Bolloré Telecom which has committed to meeting all of its rollout obligations by 2017, and to continue its policy of making spectrum available to local authorities who request it, in a lasting and foreseeable fashion. Bolloré Telecom has also committed to automatically relinquishing its frequencies in a way that is proportionate to any future failure to meet these commitments, but at minimum on a department-wide scale. In addition, the Bolloré group has committed to retaining full ownership of Bolloré Telecom until the end of 2017.

ARCEP will work to ensure that those operators who have restated their interest for WLL frequencies take a proactive approach to the investments and rollouts needed to ensure that this intangible State asset is used effectively. This will be done through a system of annual check-ups." (sse press release).

German NRA adopts draft MTRs

BNetzA isued its proposed MTRs and waits for the Commission's response (see press release).

EGBA and RGA submit complaint to the Commission over Greek Gambling Authority's decision

The Greek Gambling Regulator, shortly after assuming its powers, issued a decision, published on 5/11 in the National Gazzette (in greek), stating and enforcing the prohibition of internet-gambling activity in Greece from operators not licensed under the new Law (Law No 4002/2011) and a related Ministerial decision setting the specific tax regime for these operators. The EGBA and RGA decided to file a complaint in relation to the Authority's deicision, for extenfing OPAP's (the state owned operator) monopoly (see press release).

Monday, 26 November 2012

ComReg consults on extension of 900MHz licenses' duration

Being concerned that the multi-band spectrum auction will not be completed by the end of the 900MHz licences' duration, the Irish NRA consults on its draft decision to renew them.

Unitary Patent package closer to final adoption

"On Monday November 19, the Member States participating in the enhanced cooperation reached unanimous agreement on the Unitary Patent Package at the meeting of the Committee of Permanent Representatives (Coreper I).  Later in the same evening, an extraordinary meeting of the Committee on Legal Affairs of the European Parliament (JURI), took place in Strasbourg where MEPs expressed overwhelming support for the proposal agreed by Member States. Given these positive developments, there is wide spread optimism that the first European unitary patent could be introduced early 2014" (see Cyprus Presidency's press release).

Friday, 23 November 2012

AGCOM consults on DTV licenses Scheme

The Italian NRA has launhed its consultation on its DTV licenses Scheme as modified (see related page in italian and informative article in italian as well).

AGCOM consults on TI's Offer of NGAN End-to-End

The Italian NRA has launched its consultation regarding Telecom Italia'a offer of the NGAN End-to-End product (related page, in italian).

BIPT consults on 800 MHz auction

"Today BIPT publishes a communication" (in french) "on a study regarding the terms for allocation and use of the 800 MHz band, carried out by an independent external consultant (Athea Consulting Limited and NERA Economic Consulting) and at the same time launches a consultation commissioned by Minister Vande Lanotte on a bill amending the Electronic Communications Act and a draft royal decree as regards the terms for allocation and use of this frequency band.
 

According to the European Radio Spectrum Policy Programme1 Member States should carry out the authorisation process before 1 January 2013 in order for the 800 MHz band2 (also called “digital dividend”) to be available for electronic communications services.
 

The allocation of the band for electronic communications services is crucial to the provision of high-speed mobile Internet to the population. This also contributes to the recovery and growth of the economy and creates high-quality jobs thereby promoting competitiveness. One of the strategic goals is to stimulate accessibility of new consumer products and technologies.
 

Considering the importance of the allocation of the frequency band, BIPT launches a public consultation at the request of Minister Vande Lanotte regarding a bill amending the Electronic Communications Act (ECA) and a draft royal decree with regard to the terms for allocation and use of this frequency band.
 

The draft royal decree and the bill are underpinned by the study carried out by Aetha Consulting Limited and NERA Economic Consulting, carried out for BIPT. This study issues a series of recommendations more in particular on:
- the frequency blocks in the 800 MHz band to be auctioned; 3 lots of 10 MHz duplex;
- the coverage requirements to be complied with: 98% of the population after 6 years;
- quality obligations to be complied with: a compulsory average download speed of 3Mbit/sec;
- the allocation procedure, including a minimum entry bid (90 million euro per lot for a 15- year period).
 

These elements are included in a draft royal decree and a bill amending Article 30, § 1/1, of the ECA (minimum amount for the unique fee)" (in french). "Both are submitted together for consultation to the sector as of 14 December 2012. Following the public consultation the draft texts will go through the decision-making process. BIPT hopes to complete this allocation procedure by the end of next year, provided that the texts are approved in due time" (see press release).

Moldova's regulator issues two 4g licenses

"The National Regulatory Agency for Electronic Communications and Information technology (ANRCETI) for the first time, issued to telecommunications companies JSC "Moldcell" and JSC „Orange Moldova”, at their request, two licenses for the use of radio 2500-2690 MHz frequencies/channels for the provision of public electronic communications networks and services with radio broadband access, conventionally called 4G services" (see press release).

OFCOM consults on white spaces

OFCOM has launched its consultation on TV white spaces (see related page).

UK's Joint Regulators Group consults on cross-sectoral coordination issues

UK's Joint Regulators Group consults on cross-sectoral coordination issues (see related page).

OFCOM issued UHF strategy

"Ofcom today published plans to enable the release of new airwaves for future generations of mobile devices, which will help meet consumers’ growing demand for data on the move.

...

The plans aim to draw on the 700 MHz frequency band, which is currently used for digital terrestrial television, as part of future harmonised spectrum planning across Europe and the rest of the world. Releasing the new frequencies can be achieved without the need for another TV ‘switchover’." (see the press release and related page).

OFCOM revises proposal and launches further consultation on Business Connectivity market review

OFCOM revised its proposala and launched a further consultation on the Business Connectivity market review (see related page).

Austrian NRA states that there is so far no approval of the H3G/Orange deal

"At the request of and in coordination with the European Commission, RTR and the TKK have been deliberating conditions that would have to be met as a prerequisite for approval of the transfer of frequencies from Orange to H3G. The authority of the Austrian telecoms regulator is limited to assessing the commercial impact of a transfer of frequencies: it is not authorised to approve the merger itself. The European Commission is responsible for investigating the proposed acquisition of Orange by H3G; the Austrian cartel court is responsible for investigating the sale of Yesss! to A1. To RTR’s knowledge, neither of these two procedures has been concluded.

The TKK is required to undertake investigations into whether the transfer of frequencies from one mobile operator to another would result in a distortion of competition. In particular, the TKK has to evaluate the impact that such a transfer would have on market competitors. The TKK must prohibit the transfer of frequencies if, despite the imposition of conditions, it is likely to have a negative impact on competition. The TKK is expected to reach a decision during the course of this year.
" (see press release).

Polish telecoms stakeholders sign QoS Memorandum

"On 26 October, at the initiative of the President of UKE Magdalena Gaj, a Memorandum on cooperation aimed at improving the quality of services available in the telecommunications market was signed. In addition to the President of UKE, the memorandum was signed by undertakings operating in the telecommunications market, representatives of chambers of commerce, and academic institutions." (see press release).

Polish NRA announces bidders in the 1800 MHz tender

"By the date specified in the tender notice, i.e. 22 October 2012 at 3:00 pm, bids were submitted by the following entities (list in the order of submission):
1) P4 Sp. z o.o. (3 bids)
2) Polkomtel Sp. z o.o. (2 bids)
3) Polska Telefonia Komórkowa Centertel Sp. z o.o. (3 bids)
4) Polska Telefonia Cyfrowa S.A. (3 bids)
5) Sferia S.A. (2 bids)
6) EmiTel Sp. z o.o. (3 bids)
  
Interested companies could submit one, two or a maximum of three bids. Each of the submitted bids will be considered independently by the Tender Committee appointed by the President of UKE. The estimated tender procedure closure date is the end of December.
" (see press release).

Polish regulator issues telecoms infrastructure map

"The Office of Electronic Communications has released a telecommunications map, which is very important for the development of broadband infrastructure in Poland. The map is the result of the telecommunications infrastructure stock-taking carried out by the Office of Electronic Communications." (see press release).

Romanian NRA consults on Cost Calculation Models for Interconnection Services

"...ANCOM has submitted to public consultation the models for calculating the efficient costs of the provision of interconnection services in view of call termination, origination and switched national transit at fixed locations and termination at mobile locations, ancillary services, Ethernet backhaul services, and services of leased lines – terminating segments with the transmission capacity up to including 2 Mbps (provided on the transmission network)" (see press release).

ComReg issues final mobile and fixed call termination rates

Following the Commission's Art. comments, the Irish NRA has issued its final decision on the mobile and fixed call termination rates.

French Conseil d' Etat rejects petitions of annulment of 4g licenses

The French Conseil d' Etat has rejected requests for annulment of 4g licenses in the 800 MHz (see ARCEP's newsletter and the decision in french).

Maltese NRA issues decision on estimation of cost of capital

MCA has issued its final concerning the "theoretical background for estimating the cost of capital and ... proposed methodology and approach in estimating the weighted average cost of capital (hereafter “WACC”)" (see the relate page).

Dutch Court verifies OPTA's decision not to regulate cable TV

"The Dutch Trade and Industry Appeals Tribunal (CBb) on 5 November 2012 published its ruling in the appeal procedure regarding the television market. The CBb ruled that the Netherlands Independent Telecommunications and Post Authority (OPTA) correctly rejected parties' requests for regulation of cable television, and that OPTA duly concluded that the television market does not qualify for ex-ante regulation.

Parties requested regulation of cable television

In 2011, YouCa, Tele2, T-Mobile and KPN requested a market analysis decision for television distribution from OPTA. They wanted OPTA to impose access obligations on cable operators. In December 2011, OPTA published its Television Analysis opinion, in which OPTA performed a three-criteria test to assess whether the television market qualifies for ex-ante regulation. In its opinion, OPTA concluded that the television market does not qualify for regulation, because this market is increasingly tending towards competition. OPTA therefore rejected the requests for a market analysis decision. Parties subsequently appealed OPTA’s decision, which the Television Analysis is an integral part of. Parties were of the opinion that, among other things, OPTA failed to define the market correctly, and that it was overly optimistic about market trends. OPTA allegedly overrated competitive possibilities for new entrants in television, and underestimated the cable operators’ market power as well as the importance of analogue cable television. Also, parties felt that OPTA should have issued a market analysis decision instead of an opinion.

The CBb ruling

The CBb’s ruling addresses parties’ grievances and follows OPTA in both its procedural approach and the material assessment. The CBb agrees with OPTA that the television market is already tending towards more competition. The CBb also ruled that the way OPTA defined the market, performed the three-criteria test, and rejected parties’ requests were in accordance with the legal framework and with OPTA’s powers. The CBb therefore declared the appeals to be unfounded.

No further appeal is possible against this ruling.
" (see the press release).

EETT approves OTE's proposed Virtual Unbundling

The Greek NRA has approved the incumbent's VPU, meaning that the vdsl regulatory regime reached a level of completion leading to its commercial offer (see decision, in greek and responses to the respective consultation in greek as well).

ECN strengthens its Model Leniency Programme

"The European Competition Network (ECN), composed of the European Commission and the competition authorities of all EU Member States, has strengthened the Model Leniency Programme ("MLP"), around which ECN competition authorities align their own leniency procedures...

...

The ECN has now, in particular, clarified and simplified the information that must be provided by companies that are applying to several different authorities.
The three main changes are:
  • All leniency applicants applying to the Commission in cases concerning more than three Member States will be able to submit a summary application to national competition authorities. Previously, only the first applicant, i.e. the immunity applicant, was entitled to use summary applications under the MLP - although some national authorities had already extended the right to all applicants.
  • In addition, the ECN has agreed on a standard template for summary applications, which companies will be able to use in all Member States.
  • Finally, the ECN has published a list of national authorities which accept summary applications in English.
The MLP does not in itself have the effect of changing individual leniency programmes. By endorsing the revised MLP, the heads of the European competition authorities have agreed to use their best efforts to align their current and future leniency programmes and practices on the refined MLP. MLP changes will become operational when they have been introduced in the respective programmes or applied in practice.

Other changes include clarifications on conditions which applicants must meet in order to qualify for leniency - in particular on the duty to cooperate - and the scope of leniency programmes under the MLP, which covers secret cartels, also covering cartels which include vertical elements.
The revised text also clarifies that the ECN competition authorities should offer the same level of protection against disclosure for written and for oral leniency statements." (see press release).

CJEU decides Josef Probst case entailing ePrivacy Direcive issues

The Court delivered its judgment in Case C-119/12, the operative part of which reads as follows:

"Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as authorising a provider of public communications networks and of publicly‑accessible electronic communications services to pass traffic data to the assignee of its claims for payment in respect of the supply of telecommunications services for the purpose of recovery of those claims, and as authorising that assignee to process those data on condition, first, that the latter acts under the authority of the service provider as regards the processing of those data and, second, that that assignee confines itself to processing the traffic data necessary for the purposes of recovering the claims assigned.

Irrespective of the classification of the contract of assignment, the assignee is deemed to act under the authority of the service provider, within the meaning of Article 6(5) of Directive 2002/58, where, for the processing of traffic data, it acts exclusively on the instructions and under the control of that provider. In particular, the contract concluded between them must contain provisions capable of guaranteeing the lawful processing, by the assignee, of the traffic data and of enabling the service provider to ensure, at all times, that that assignee is complying with those provisions."

Commission approves BDUK

"The European Commission has found that a UK umbrella support scheme for investments in next generation access (NGA) broadband networks, 'BDUK', is in line with EU state aid rules. In particular, the scheme is aimed at supporting local projects in rural and remote areas, where such networks would unlikely be developed on commercial terms" (see the press release).

The decision was welcomed with great relief from the British side (see DCMS' press release).

Commission gives green light to Bavarian NGA state aid scheme

"The European Commission has approved under EU state aid rules a €2 billion support scheme aimed at promoting the development of next generation access (NGA) broadband networks in currently underserved areas of the German region of Bavaria. The Commission found the scheme to be in line with EU state aid rules, in particular because it ensures that support is granted only in areas where no commercial NGA network rollout is foreseen in the near future. This will avoid the crowding out of private investments" (see the press release).

Commission's Art. 7 Comments to ComReg on its mobile call termination market review and proposed remedies in the mobile and fixed call termination markets

The European Commission, made the following comments, in its decision address to ComReg on the latter's mobile call termination market review and proposed remedies in the mobile and fixed call termination markets:

"Need for a consistent European approach for termination rates 

Implementation date
 

ComReg proposes to implement termination rates consistent with the outcome of a pure BU-LRIC model only as of 1 July 2013. This is not in line with the Commission’s Termination Rates Recommendation, according to which, NRAs should ensure that termination rates are implemented at a cost-efficient (BULRIC) level by 31 December 2012.
 

As regards mobile termination, for the period from 1 July 2013 until the adoption of a pure BU-LRIC model (expected by 1 July 2014 at the latest), ComReg proposes to set MTRs in Ireland on the basis of a benchmarking method. Recital 22 and of Recommend 12 of the Termination Rates Recommendation exceptionally allow NRAs, in the event of limited resources, to apply costefficient termination rates consistent with the Recommendation using an alternative approach. However, even in those circumstances, NRAs must comply with the deadline of 31 December 2012 set out in Recommend 11 of the Termination Rates Recommendation.
 

Regarding fixed termination, ComReg argues that a delayed introduction of costefficient FTRs by 1 July 2013 would better match business expectations. The Commission would like to stress that the Recommendation was issued in 2009 and that therefore market players are aware of the implementation dates. The timeframe set out in the Recommendation aims not only to ensure the sustainability of the sector but also to maximise consumer benefits as soon as possible. In its 2007 decision on the market review, the Commission invited ComReg to revisit its analysis as soon as a common costing approach for fixed termination is established at EU level. This would have allowed ComReg to ensure a more gradual transition towards BU-LRIC-based rates and to meet the implementation date set in the Recommendation.
 

Against this background, the Commission considers that ComReg should review its proposed glide paths for both fixed and mobile termination rates. The Commission proposes to call upon ComReg to implement the target MTR and FTR levels (€c 1.02/min and €c 0.098/min respectively) by 31 December 2012, thus aligning the implementation dates with the deadline set in the Termination Rates Recommendation.
 

However, the Commission acknowledges that bringing in cost-efficient MTRs as of 1 January 2013 would result in a steep reduction over a very short time period.

The notified draft measure also proposes to impose cost-efficient FTRs on alternative operators that were not previously subject to cost-orientation. ComReg is of the view that there should be the same implementation dates in both markets in order to minimise distortions and ensure consistent application. Against this background, the Commission considers that a short delay in implementing the cost-oriented fixed and mobile termination rates, which in no circumstances should last beyond 1 July 2013, may exceptionally be acceptable in this case.
 

Benchmarking approach
 

According to ComReg, its benchmark is based on rates in the Member States that have notified pure BU-LRIC models to the Commission (with the exception of the Netherlands).
 

On this point, the Commission would like to underline that, for the purpose of benchmarking, an average of termination rates set by the NRAs by way of final decisions in the Member States should be applied. This is without prejudice to an appeal pending against a final decision, as far as the rates adopted therein are implemented, i.e. in force.
 

The Commission acknowledges that in this particular case, the proposed MTR (€c 1.02/min) appears to be consistent with the EU simple average of the Member States that have implemented a pure BU-LRIC model by a way of a final decision, and that therefore the outcome of ComReg’s benchmarking is in line with the Commission’s recommended approach. The following table, also cited by ComReg in its notification, lists all the Member States that have adopted the pure BU-LRIC model by a way of a final decision and a simple arithmetic average of the adopted rates in those countries yields €c 1.02/min:"

...table of Member States, having adopted pure BU-LRI model, followed by rates and implementation dates...

"In view of future reviews of the benchmark rate, the Commission would therefore like to invite ComReg to clarify in its final decision that it includes in its benchmarking exercise all pure BU-LRIC MTRs notified to the Commission, at the target level, and as specified in the final decisions taken by the NRA."

Commission's Art. 7 Comments to the Maltese NRA on its reviews of markets 4 and 5

The European Commission made the following comments, in its decision addressed to MCA on the latter's reviews of the wholesale network infrastructure access and the wholesale broadband access markets:

"Need to impose proper access obligations on fibre infrastructures
 

The Commission notes that MCA proposes to impose an unbundling obligation on fibre only as and when FTTH/FTTB is deployed, as it considers these infrastructures to be at a very early stage of development. However, the Commission notes that FTTH/FTTB lines are already available to some households and businesses, and, furthermore, that GO is already advertising the upcoming commercial launch of its FTTH network while pioneering a more extensive roll-out. As a result, FTTH lines will certainly become available on a larger scale within the next regulatory period. Against this background, in order to ensure regulatory predictability and to prevent possible competition problems at an early stage, the Commission invites MCA to revise the proposed fibre access obligation, and to make it immediately applicable and no longer conditional on the level of fibre deployment. In order to ensure transparency, a reference offer should also be provided by the SMP operator.
 

Moreover, as regards the SMP operator’s FTTC infrastructure, the Commission notes that MCA proposes to keep the currently imposed SLU remedy supplemented by appropriate backhaul, along with a temporary virtual access (TVA) solution until the migration period is over. The Commission stresses that the sub-loop unbundling (SLU) access obligation has so far not been taken up by any of the alternative operators in Malta. The absence of a regulated price for backhaul makes this offer even less attractive. Moreover, as recognised by MCA itself, the Commission points out that SLU deployment may become even more problematic for access seekers entering the market at this stage, given that the transition to FTTC is almost finalised and that a further transition to FTTH is likely to happen. In this respect, the Commission re-iterates its comments in case MT/2011/1263 and invites MCA to impose as well in its final measure a virtual access product on the SMP operator’s FTTC infrastructures that would be maintained even after the migration period, should the SLU obligation not prove sufficient to address the competition problem identified in the market.

Price regulation and forthcoming guidance on non-discrimination and costing methodologies
 

The Commission notes that MCA considers using a historic cost-based FDC methodology for setting copper access prices, and is currently developing an LRIC model as a basis for setting fibre access prices.
 

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 to provide guidance on the implementation of the non-discrimination obligation and costing methodologies for key access prices.
 

The Commission stresses that it is unclear whether a historic cost-based methodology for copper access prices would send reliable buy or build signals for investment in NGA infrastructures. The Commission therefore invites MCA to review its costing methodology for setting copper access prices, also in the light of the forthcoming recommendation once adopted.
 

With regard to fibre infrastructure, the Commission points out that an ex ante price control obligation for fibre infrastructure would not be necessary if there were sufficient competition safeguards in place. In the latter case, MCA should consider imposing at least implement the following:
 

(a) Equivalence of input (EoI), which generally requires SMP operators’ own downstream operations to use the same products, processes, and prices as those used by their retail rivals. As equivalence of input can only be fully implemented over a longer time period, this requirement could consist in immediate terms in a firm obligation on and commitment by the SMP operator to undertake certain key initiatives over a set time period. Since the SMP operator has recently announced its intention to embark upon a more extensive FTTH rollout phase, MCA may consider engaging as soon as possible in dialogue with stakeholders to assess the feasibility of implementing EoI in Malta;
 

(b) A transparency obligation regarding fibre, comprising a number of clearly specified KPIs, an effective enforcement and monitoring mechanism (such as internal or external regular audits) and publication of the KPIs; 

(c) A replicability requirement also for fibre-based retail products;
 

(d) An accounting separation obligation also covering fibre products. 

Against this background, MCA could consider lifting the cost orientation requirement for the SMP operator’s fibre lines as soon as the above safeguards are effective in Malta and MCA would establish that the SMP operator’s pricing behaviour is properly constrained by either cost-oriented copper prices or by significant competitive constraints, indicated in particular by the presence of welldeveloped alternative infrastructures with comparable reach."

Commission's Art. 7 Comments to the Danish NRA on its review of the SMS termination market

The European Commission, made the following comments, in its decision addressed to the Danish NRA on the latter's review of the SMS termination market:

"The need to monitor developments on the retail market and, in particular, the take up of smartphones and mobile broadband connections
 

When assessing the second criterion DBA explains that SMS termination rates did not change prior to the imposition of the price control obligation and they remained stable at a level well above costs. According to DBA, it was only because of the price control obligation that SMS termination rates were reduced. DBA, therefore, concludes that the SMS termination rates set on a commercial basis would not tend towards costs within the timeframe of the review.

The Commission points out that retail services such as MIM or push e-mails could potentially exercise an indirect constraint on wholesale SMS prices. Where such constraint exists, an increase of wholesale termination rates would not be profitable, because the subsequent increase in retail rates could steer demand away from SMS towards the new retail services.
 

DBA argues that the take-up of smartphones, mobile broadband subscriptions, and the resulting use of new services such as MIM and push e-emails is not sufficient to ensure that the market for wholesale SMS termination tends towards effective competition. DBA argues that the current level of penetration falls short of the required level of penetration of 100% for such constraints to materialise. DBA explains that the percentage of end-users being able to send and receive MIM would be less than 25%.
 

As to the evolution of some key indicators in the assessment of the second criterion on the market for wholesale SMS termination, the Commission notes that (i) the traffic of originated SMS has been reduced from 6.6 billion in the first half of 2010 to 6.2 billion in the second half of 2011, and 5.7 billion in the first half of 2012, (ii) almost half of the Danish mobile users had a smartphone in 2011 compared to 2010, where this figure was at around a quarter, and (iii) the percentage of advertised bundles including free SMS increased from 76% in May 2011 to 84% in January 2012. DBA explains it that does not collect data on the number of users subscribing to bundled offers including free SMS, and that it cannot accurately and reliably estimate the evolution of retail SMS prices.
 

Given the clear trends away from SMS and towards alternative means to convey text messages, the Commission questions whether a level of penetration of smartphones and mobile broadband connections close to 100% is required to conclude that MIM and SMS are substitutes or, at least, that MIM exerts a sufficient competitive constraint on SMS on the retail market to impede operators setting SMS termination rates independently of their customers and competitors.
 

Although the above mentioned developments indicate a growing importance of said constraints, in view of the lack of information on bundled offers and retail price evolution the Commission does not propose to challenge DBA's findings at this stage. The Commission welcomes that DBA will closely follow the development of smartphone subscriptions and mobile broadband connections and it is committed to develop a methodology for collecting data on revenues from bundled offers.
 

Against this background, the Commission encourages DBA to collect the missing information, to closely monitor the market developments, and to lift regulation as soon as market conditions show a clear tendency towards effective competition and the three criteria a no longer met."

Commission sends Hungary 2nd RO on telecom tax on art. 49 TFEU legal base

Commission has sent Hungary a second Reasoned Opinion after the one based on breach of the Authorisation Direcive (which led to a referral -see press release-), this time, alleging breach of freedom of establishment (art. 49 TFEU) concerning its telecom tax (see press release).

EDPS issues Opinion on Cloud Computing

"...the European Data Protection Supervisor (EDPS) adopted his opinion on the Commission Communication on "Unleashing the potential of Cloud Computing in Europe" in which the Commission proposes key actions and policy steps to speed up the use of cloud computing services in Europe.

Other EDPS recommendations include:
- Clarifying and providing further guidance on how to ensure the effectiveness of data protection measures in practice and the use of binding corporate rules

- Developing best practices on issues such as controller/processor responsibility, retention of data in the cloud environment, data portability and the exercise of data subjects' rights
- Developing standards and certification schemes that fully incorporate data protection criteria
- Clearly defining the notion of transfer and the criteria under which access to data in the cloud by law enforcement bodies outside the EEA countries could be allowed
" (see press release).

ENISA issues study on technical aspects of online behavioural tracking

ENISA has issued a study on the technical aspects of online behavioural tracking.

ENISA issues technical report on right to be forgotten

ENISA has issued a technical report on the right to be forgotten (see press release).

Monday, 19 November 2012

Norwegian NRA announces completion of 2GHz auction

"The 2 GHz auction has ended after one auction round and all nine blocks were sold at the reserve price of 5 million Norwegian kroner per block. TeliaSonera and Telenor each won four blocks and Mobile Norway won one block of spectrum. This result means that these three companies each have the same amount of spectrum in the 2 GHz band (approximately 2 x 20 MHz)" (see release).

ComReg completes mutli-band spectrum auction

The Irish NRA has announced the results of its multi-band spectrum auction (see release and notice).

Wednesday, 14 November 2012

BEREC's statement on NRA independency

"BEREC is concerned at the impact of some national legislative initiatives on the effectiveness of
electronic communications regulatory authorities’ performance of their regulatory functions, and, in
turn, on their independence
" (see statement).

Tuesday, 13 November 2012

Commission's Art. 7 Comments to the Lithuanian NRA on the latter's review of the WBA market

The European Commission made the following comments, in its decision, addressed to the Lithuanian NRA on the latter's review of the Wholesale Broadband Access market:

"Need to impose an effective price control mechanism
 

The Commission acknowledges that RRT's cost-orientation obligation obliges the SMP operator to calculate prices on the basis of the chosen costing methodology (FDC), in line with cost accounting rules in place.
 

The Commission notes, however, that in relation to prices for services provided over FTTx/LAN infrastructures, RRT's proposal cannot be regarded as a strict ex ante price control obligation since the SMP operator will apply the prices before RRT has a chance to verify them, allowing RRT to intervene only ex post.

The Commission points out that, in order to ensure regulatory certainty for access seekers and promote efficient investment by all operators, cost-oriented access prices should in principle be regulated on an ex ante basis. In accordance with the regulatory framework, such prices can be appropriately adjusted for investment risk, in order to drive both competition and investment in (next generation) infrastructure. Therefore, the Commission invites RRT to reconsider imposing an ex ante price control obligation also for services provided over FTTx/LAN infrastructure in its final measure.
 

Notwithstanding the above, the Commission also points out that a strict ex ante price control obligation on fibre infrastructure would not be necessary if there were sufficient competition safeguards in place. In the latter case, RRT should at least implement the following:
 

(a) Equivalence of input, which generally requires SMP operators' own downstream operations to use the same products, processes, and prices as those used by their retail rivals. As equivalence of input can only be fully implemented over a longer time period, this requirement could consist in immediate terms in a firm obligation on and commitment by the SMP operators to undertake certain key initiatives over a set time period;
 

(b) A transparency obligation regarding fibre, comprising a number of clearly specified KPIs and an effective enforcement and monitoring mechanism (such as internal or external regular audits) and publication of the KPIs;
 

(c) A replicability requirement also for fibre based retail products;
 

(d) An accounting separation obligation covering also fibre products.

In any case, RRT should additionally impose a cost-oriented access obligation on fibre in market 4, unless it provides evidence of a significant competitive constraint at retail level, attributable to (i) the absence of high and non-transitory structural barriers to entry and expansion, signified by the presence of welldeveloped alternative infrastructures with comparable reach and/or (ii) costoriented and non-discriminatory access to copper wholesale products.
 

The Commission is currently working on a recommendation that will provide guidance on the application of a non-discrimination obligation. The Commission invites RRT to review its analysis in the light of any subsequent recommendation adopted by the Commission, following its publication.

Forthcoming guidance on costing methodologies
 

The Commission notes that, in order to ensure regulatory integrity of the WBA market, RRT concluded that the Fully Distributed Costs (FDC) methodology based on historical costs is the most appropriate method to calculate cost oriented prices for WBA services provided over copper, as well as FTTx/LAN lines.
 

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 which will provide guidance on costing methodologies for key access prices. In the light of this, the Commission invites RRT to review its analysis upon publication of the relevant recommendation."

RSPG issues draft Report on proposed spectrum coordination approach for broadcasting in the case of a reallocation of the 700 MHz band

"...the RSPG has reached the following conclusions :
 

1. The reallocation of the band 694-790 MHz to the mobile service, if decided, will be significantly disruptive to broadcasting service, with 30% less spectrum available, and each layer, each part of country, and each country will be affected in a different way. Therefore, there would be a need for each country to reconstitute consistent rights below 694 MHz based on the equitable access principle, which constitutes a considerable challenge.
 

2. The equitable access principle has to take into account the various needs of each country and elements such as the quality of the coverage, the extent of use of the single frequency networks, and/or the type of reception.
 

3. In the case of a reallocation of the 700 MHz frequency band, the negotiation approach should preferably, similarly to the 800 MHz, be based on bilateral and multilateral coordination with coordination groups such as WEDDIP and NEDDIF, with some suggested improvements.
 

4. In order to improve such approach, the action of multilateral groups could be strengthened so as to:

• encourage the creation of new groups if needed and,

 

• ensure that the discussions in these groups would result in multilateral formal agreement(s) and,
 

• define a realistic deadline, consistent with the implementation objective, to conclude the work.
 

5. The overall coordination process would need to be monitored and reviewed by CEPT in order to ensure the consistency between the progress of coordination in all involved countries. This should include a roadmap for reaching coordination agreements.
 

6. It is expected that a period of more than 3 years would be required for reaching the cross border coordination agreements necessary to reconstitute equitable broadcasting rights below the 700 MHz band. The essential part of such process cannot start before WRC-15 has decided about the 700 MHz band allocation and EU about the future use in this band.
 

7. Taking into account the interference issues between mobile networks (low power, low tower networks) and broadcasting networks (high-power high-tower) in the transitional period, there would be a need, if the 700 MHz band is to be used for mobile service, for some kind of coordination on the date for introduction of mobile service in the 700 MHz band, which will need to take into account all elements which may create constraints to the clearing of the 700 MHz band." (see the draft Report).

OFCOM completes 4g auction rules

OFCOM has finalised its auction rules for the 4g licenses in the 800MHz and 2,6 GHz (see related page and press release), consults on the limitation of licenses (see related page) and is expected to make publicly available in the niext coming days guidance on the auction.

Belgian cable companies obliged to offer access after Court of Appeals decision

The Brussels Court of Appeals rejected Brutélé/Tecteo and Numéricable actions for suspension of their obligation to provide access (see related page). The respective Reference Offers have been submitted to the NRA (see related page, in french).

CAT rules it cannot compensate the Competition Commission

"Ruling of the Tribunal on the application made by the Competition Commission (the “Commission”) for the payment by Everything Everywhere Limited (“EE”) and Vodafone Limited (“Vodafone”) of its costs of, and arising out of, defending its determination dated 9 February 2012 (the “Determination”) before the Tribunal. EE and Vodafone challenged the Determination pursuant to section 193(7) of the Communications Act 2003 (the “2003 Act”).

Rule 55(2) of the Tribunal’s Rules provides that the Tribunal may, at its discretion, make an order “in relation to the payment of costs by one party to another”. The Tribunal held that, in defending its Determination against the challenges brought pursuant to section 193(7) of the 2003 Act, the Commission was not a “party” to the proceedings, within the meaning of Rule 55(2). On that basis the Tribunal lacked jurisdiction to make an order for the payment of the Commission’s costs. Nevertheless, in cases where a challenge is brought against a determination made by the Commission in relation to price control matters, the Commission is entitled to appear before the Tribunal in order to actively, but neutrally, assist the Tribunal. The Tribunal also accepted that, if an appropriate application were made in a future case, it has a discretion to join the Commission as a “party” but held that that discretion would be exercised only rarely.


As such, the Commission’s application for its costs was refused for lack of jurisdiction.
" (see the related page).

German NRA issues Annual Report

BNetzA issues Annual Report.

EETT fines MNOs for cramming

The Greek NRA fined Cosmote with 1,5 million euros, Vodafone with 1 million euros and Wind with 500.000 euros. The MNOs allegedly billed consumers for connecting to the internet, something which took place only because their devices were being automatically updated and even though interent service was not offered by their contracts (see the NRA's press release, in greek).

Friday, 9 November 2012

OFCOM consults on its WBA market review

OFCOM launched its consultation concerning the review of the wholesale broadband access market (see related page).

OFCOM consults on its fixed access markets reviews

OFCOM launched "a series of market reviews (collectively referred to as ... Fixed Access Market Reviews) to examine competitive conditions in the following fixed access markets over the period from April 2014 to March 2017:
  • The Wholesale Local Access (WLA) market;
  • The Wholesale Fixed Analogue Exchange Line (WFAEL) market;
  • The Wholesale ISDN30 market;
  • The Retail and Wholesale ISDN2 market; and
  • Various additional markets in Hull – residential fixed narrowband analogue access, business fixed narrowband analogue access and retail ISDN30." (see the related page).

Commission's Art. 7 Comments to UKE on the latter's mobile termination market review

The European Commission made the following comments, in its decision, addressed to the Polish NRA on the latter's mobile termination market review:

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

The Commission welcomes UKE's commitment to set regulated mobile termination rates (MTRs) on the basis of a pure BU LRIC cost model, at a level of 1.04 €ct/min. However, the Commission notes that the proposed glide-path for the introduction of fully cost-oriented MTRs in Poland will result in reaching the LRIC target level only by 1 July 2013, which is not 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.
 

Moreover, the Commission regrets that despite significant joint efforts of UKE, BEREC and the Commission to ensure that mobile termination rates in Poland are set at a single, cost-efficient level as of 1 January 2013, UKE now intends to deviate from the Common Statement of January 2012. By way of the Common Statement UKE had informed all stakeholders in a transparent manner and well in advance about its regulatory intentions to introduce symmetric pure BU LRIC rates by way of binding decisions by 1 January 2013, in line with the Termination Rates Recommendation.
 

In view of UKE's January 2012 announcement of its regulatory intentions and the envisaged date for the introduction of truly cost oriented MTRs in Poland (by 1 January 2013), the Commission considers it appropriate to act in accordance with the Common Statement. The Commission therefore urges UKE to implement pure BU LRIC rates already as of 1 January 2013.
 

The Commission takes note of UKE's argument that any earlier introduction of MTRs based on pure LRIC would result in a disruptive impact on Polish mobile operators. The Commission recognizes that UKE must strike a balance between protecting consumer welfare and ensuring undistorted competition on the one hand, and avoiding a disruptive impact on the mobile operators on the other hand. Against this background the Commission considers that a short delay in the implementation of the cost-oriented rates which in no circumstances should last beyond 1 July 2013, may exceptionally be acceptable in this case.
 

In any event, UKE should undertake all measures to ensure that the MTRs reflecting the efficient, cost oriented levels are applied in practice by the desired date. For that reason UKE should impose dissuasive penalties in case of noncompliance, which could avoid having to resolve individual disputes between operators as happened in the past. In any event, given the track record of implementing MTR decisions in the past, the Commission will carefully monitor whether the MTRs as notified are applied by the operators in Poland by the desired date and consider intervening in case of UKE's delay in implementation of its decisions."

Greek NRA consults on OTE's RUO and RBO, in view of the inclusion of the VPU offer

EETT launched its consultation on the amendment of the incumbent's Reference Unbundling and Broadband offers, so as to include the envisage ngn VPU product offer (see the press release and document, all in greek).

Thursday, 8 November 2012

AGCOM consults on TI's market 4 ngn products

The Italian NRA consults on Telecom Italia's market 4 ngn products (see related page, in italian).

Finnish 800MHz auction announced

"The Finnish Government has issued a resolution on spectrum policy declaring that operating licences for the broadband 800 MHz mobile communications network are to be granted by means of a spectrum auction.

Registration for the auction is due to begin before the end of 2012, and the auction is to be held in early 2013. Those registering for the auction will have to pay a participation fee of EUR 65,000 to cover the administrative costs of the process.

A total of 2x30 MHz of frequencies are for sale, to be auctioned in 2x5 MHz frequency pairs. A starting price will be set for the frequencies, generating auction revenue of at least EUR 100 million to the State." (see the press release).

French NCA asked to deliver its Opinion on Roaming issues

"After consulting ARCEP (The French regulator of the electronic communications and postal sectors), the Autorité de la concurrence will give its opinion on whether or not the following issues are in keeping with the effective operation of competition:
• Continuation of the roaming agreement between Free and Orange

The 2G roaming agreement concluded in March 2011 between Free and Orange has been extended to the 3G network within a strictly commercial framework. This agreement enables Free to direct traffic to its customers via the Orange network in even the most populated areas in France. Under such circumstances, and should the agreement be maintained or made more permanent, the Government is wondering to what extent Free would then enjoy a rollout model that is lastingly more advantageous than the rollout models of its competitors.

• Pooling or use of roaming in the 800 MHz band for the least populated areas in France


Certain operators wish, as of now, to pool their networks in order to accelerate rollouts in the 800 MHz band in the least populated areas in France, especially in village centres that are part of the “blind spot coverage” programme. In view of the difficulties they are encountering, they want clearer information about the various available options that are in compliance with competition rules.


• Pooling of networks between the operators in the most populated areas in France


The Government is asking the Autorité de la concurrence whether, outside of these priority rollout areas, it would be possible to consider pooling for the most populated areas in France, without adversely affecting competition, employment, and investment.
" (see the press release).

Vivendi notifies N/C+ acquisition to the Commission

"1. On 26 October 2012, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 ( 1 ) by which Canal+ Group SA, (‘Canal+’, France — ultimately owned by Vivendi SA (‘Vivendi’)) acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of N/C + Entity (‘N/C+’, Poland) by way of contract.
2. The business activities of the undertakings concerned are:
— for Canal +: the production, distribution and marketing of television channels and services over all platforms,
— for N/C+: the provision of pay-TV services via direct to home satellite in Poland.
" (see the OJ).

Greek Gambling Commission undertakes its duties

The Greek Gambling Commission, finally undertook, after a full year, with its decision No 22/2/22.10.2012 (in greek), its duties as provided under Law No 4002/2001 (see its announcement, in greek).

Monday, 5 November 2012

European Commission decides to add another 120 MHz for 4g

"The European Commission has today decided to add another 120 MHz to the radio spectrum portfolio for 4G technologies, such as LTE (Long Term Evolution), around the 2 GHz band. This band is currently solely used for UMTS (Universal Mobile Telecommunications System) wireless communications, known as 3G networks. The Decision makes it mandatory for Member States to open the relevant spectrum by 30 June 2014 at the latest, and lays down harmonised technical conditions to allow coexistence between different technologies. On this basis the EU will enjoy up to twice the amount of spectrum for high speed wireless broadband as in the United States, namely around 1000 MHz." (see the press release).

UPDATE (06/11/2012): The decision was made publicly availale today.

Dutch DPA issues Opinion on Cloud Computing issues

The Dutch DPA issued its Opinion on Cloud Computing issues (see press release).

Cypriot Ministry consults on spectrum transfers draft Decree

The competent Cypriot Ministry launched its consultation on a spectrum transfers draft Decree, in alignment with the RSPP (in greek).

EETT consults on the incumbent's proposed VPU offer

The Greek NRA launched its consultation on the technical and operative aspects of OTE's proposed Virtual Partial Unibundling offer (in greek).

Thursday, 1 November 2012

Finnish legislative framework for the 800MHz auction, near to completion

"Legislative amendments required by spectrum auction in the 800 MHz frequency band are near completion. The Government submitted a bill on the matter for approval to the President of the Republic on Thursday 1 November. The President is expected to approve the bill on Friday 2 November.

The amendments to the Act on auctioning certain radio frequencies will enter into force on 8 November. Registration for the auction is due to begin before the end of the year, and the auction is to be held in early 2013.

Parliament requires that before licences for mobile communications are granted in the 700 MHz band, an analysis needs to be conducted on the impacts of the 800 MHz spectrum auction on competition in the field and on consumer prices. The results of the analysis must be taken into account in the allocation of 700 MHz frequencies.

In the 800 MHz band, a total of 2x30 MHz of frequencies are for sale, to be auctioned in 2x5 MHz frequency pairs. A starting price will be set for the frequencies, generating auction revenue of at least EUR 100 million to the State.

Those registering for the auction will have to pay a participation fee of EUR 65,000 to cover the administrative costs of the process" (see press release).


CAT rejects Telefonica's appeal in MTRs case

CAT rejected Telefonica's appeal of OFCOM's determination of dispute with H3G and Vodafone on termination issues and in particular on the flip-flopping” practice employed (see related page).

CC issues final merger procedural guidelines and consults on revised disclosure guidance

The UK Competition Commission made public its final merger procedural guidelines and launched its consultation on its review of the existing Chairman’s Guidance on Disclosure of Information in Merger Inquiries and Market Investigations (see related page).

Commission's Art. 7 Comments to Slovakian NRA's methodology on fixed call origination and termination price control

The European Commission, made the following comments, in its decision, to TUSR's methodology on fixed call origination and termination price control:

"Need to ensure timely price control remedies for wholesale call termination services

The Commission notes that the TÚSR does not seem to have established a specific time schedule as regards the notification and imposition of the actual wholesale fixed call termination rates coming out of the presently notified model.
 

Against this background and in order to bring the benefits of lower termination rates more quickly to consumers the Commission invites the TÚSR to notify the new prices for wholesale fixed call termination as soon as possible in 2012, so that these new prices could be applied already from 1 January 2013 as required by the Termination Rates Recommendation.
 

Failure to implement pure BU-LRIC rates by the deadline foreseen in the Termination Rates Recommendation would call for the application of rates in the interim, i.e. as of 1 January 2013 until the application of pure BU-LRIC, in line with the provisions of the Termination Rates Recommendation (e.g. benchmarking). The Commission would, however, like to remind the TÚSR that should its interim price control remedies 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.
 

Need for transparent and consistent cost modelling 

The Commission acknowledges that the TÚSR explains in some detail how the hypothetical network has been modelled. It is, however, not entirely clear whether TÚSR's use of Slovak Telekom's data goes beyond reconciliation with or crosschecking of the bottom up (engineering) model or whether TÚSR's approach could in fact amount to top-down modelling.

The Commission has already expressed the view that top-down models do not promote efficiency, since they normally allow for the recovery of costs incurred as a result of operator's inefficiencies. The Commission’s Termination Rates Recommendation suggests therefore an evaluation of efficient costs based on the use of a bottom-up modelling approach, which could be reconciled with a topdown
approach (recital 11 of the Termination Rates Recommendation).
 

In view of the uncertainties surrounding the use of Slovak Telekom's data in the modelling process the Commission invites the TÚSR to provide evidence in its final measure that the proposed LRIC model is a pure bottom-up model as foreseen in the Termination Rates Recommendation."