Wednesday, 30 January 2013

Dutch super regulator to be launched after 5 February 2013

"The new regulator, the Netherlands Authority for Consumers and Markets (ACM), will not be launched on January 1, 2013. The so-called Establishment Act, which makes possible the creation of the ACM, has yet to be brought to the floor of the Dutch Senate. That is currently scheduled for February 5, 2013." (see Dutch NCA's press release).

OFCOM awarded new local TV multiplex on DTT

"Ofcom has today awarded the licence to operate the new local TV ‘multiplex’ on digital terrestrial TV (DTT).

The multiplex operator will be responsible for building and maintaining the technical infrastructure required to broadcast the 19 local TV services currently being licensed by Ofcom. The award follows legislation enabling Ofcom to issue local TV licences.
The multiplex licence is awarded to:

Name: Comux" (see press release).

Cypriot NRA consults on broadcasting transmission services market review

OCECPR has launched its consultation on its draft market review of the broadcasting transmission services market (see related page, in greek).

Tuesday, 29 January 2013

Canadian and Dutch data protection authorites issue findings on "WhatsApp's" investigation

"The Office of the Privacy Commissioner of Canada (OPC) and the Dutch Data Protection Authority (College bescherming persoonsgegevens, (CBP)) today released their findings from a collaborative investigation into the handling of personal information by WhatsApp Inc., a California-based mobile app developer.

The coordinated investigation is a global first, as two national data protection authorities conducted their work together to examine the privacy practices of a company with hundreds of millions of customers worldwide. This marks a milestone in global privacy protection.  

Jacob Kohnstamm, Chairman of the Dutch Data Protection Authority, adds: “But we are not completely satisfied yet. The investigation revealed that users of WhatsApp – apart from iPhone users who have iOS 6 software – do not have a choice to use the app without granting access to their entire address book. The address book contains phone numbers of both users and non-users. This lack of choice contravenes (Dutch and Canadian) privacy law. Both users and non-users should have control over their personal data and users must be able to freely decide what contact details they wish to share with WhatsApp." (see related page).

UK's regulator asks PRS providers for robust method in place to verify consumer consent to any charges

Phonepay Plus issued a Notice as "a reminder for all those who provide premium rate services (PRS) for the purposes of section 120 of the Communications Act 2003, and who further initiate or otherwise facilitate charging to a mobile device, of PhonepayPlus’ expectation that providers have a robust method in place to verify consumer consent to any charges or marketing to a mobile device".

Finnish Minister calls for legislative action to enable mobile broadband in 700 MHz

"Finland's Minister of Housing and Communications requests that action be taken to draft legislative amendments necessary for making the 700 MHz band, currently allocated to TV broadcasting, available to mobile broadband" (see press release).

ARCEP issues opinion on MVNOs following French NCA's request

"At the request of Alternative Mobile, the French Competition authority asked ARCEP to give its opinion on the state of competition in wholesale and retail mobile telephony markets in France, in particular by examining wholesale prices in relation to the retail prices that network operators charge, and by providing market players and the regulator with recommendations on measures that could be taken to allow MVNOs to improve competition in the mobile telephony retail market" (see ARCEP's press release and opinion, in french, as well as the competition authority's press relase and opinion, both in french).

ICO fines Sony for gamers' data comrpomise

"The entertainment company Sony Computer Entertainment Europe Limited has received a monetary penalty of £250,000 from the Information Commissioner’s Office (ICO) following a serious breach of the Data Protection Act.
The penalty comes after the Sony PlayStation Network Platform was hacked in April 2011, compromising the personal information of millions of customers, including their names, addresses, email addresses, dates of birth and account passwords. Customers’ payment card details were also at risk.
An ICO investigation found that the attack could have been prevented if the software had been up-to-date, while technical developments also meant passwords were not secure." (see press release).

ComReg's Consultation on Incident Reporting & Guidance on Minimum Security Standards

The Irish NRA consults on Incident Reporting & Guidance on Minimum Security Standards.

GSMA announces further self-regulatory measures to secure privacy

"To mark European Privacy Day, the GSMA is announcing new mobile industry commitments to reinforce privacy protection for mobile app users. Building on the success of the GSMA’s Privacy Design Guidelines published last year, a number of European mobile operators are participating in a new initiative that ensures the effective and consistent implementation of these Guidelines and holds operators directly accountable for securing the privacy of all customers who use theirown-branded mobile apps.
By signing up to an Accountability Framework, a new tool published today and with the potential for application across the mobile ecosystem, GSMA members can now formally commit to ensuring their business practices are compliant with the Guidelines. The core elements of the Framework include:
  • Organisational commitment: confirming senior management buy-in and appropriate delegation to ensure the Guidelines are implemented consistently across an organisation’s operations;
  • Internal programme controls: including staff guidance on practical application of the Guidelines and systems for customers to report privacy-related complaints and incidents; and
  • Enforcement for noncompliant organisations: ongoing noncompliance or serious breaches will lead to appropriate sanctions." (see press release).

Art. 29 WP Opinion on proposed implementing acts forseen in data reform package

Art. 29 WP Opinion on proposed implementing acts forseen in data reform package.

Thursday, 24 January 2013

German Federal Constitutional Court rules interest on cartel fines valid

"In its ruling of 19 December, 2012, which was made public today, the First Senate of the Federal Constitutional Court decided that the statutory imposition of interest on cartel fines is consistent with the Basic Law" (see Bundeskartellamt's press release).

Greek NCA issues new Operation and Management Regulation

The Greek NCA issued its new Operation and Management Regulation (as published in the National Gazzettte, in greek).

Spanish NCA fines PRISA and TELEFÓNICA for breach of commitments

"The CNC has fined PRISA TELEVISIÓN and TELEFÓNICA DE ESPAÑA €188,646.00 for breaching the commitments subject to which the TRIO PLUS infringement proceeding was brought to an end" (see the related page and press release).

BIPT approves final version of Coditel's wholesale access reference offer

BIPT approves final version of Coditel's wholesale access reference offer (in french).

UK's Communications Minister calls on satellite platforms to stop charging PSBs

"Speaking at the Oxford Media Convention, Communications Minister Ed Vaizey called on satellite platforms to end the fees they charge public service broadcasters for carrying their channels.

The BBC and other public service broadcasters currently pay millions of pounds a year to be shown by satellite platforms, while cable networks carry these channels without payment" (see DCMS' press release).

OFCOM consults on spectrum trading regulation

OFCOM consults on spectrum trading regulation (see related page).

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

"The European Commission has asked the European Court of Justice to impose a fine on Portugal because it has not respected a 2010 Court judgment requiring it to follow EU telecoms rules when deciding who should provide universal service in Portugal. The Commission is suggesting a lump sum of € 5 277.30 per day for the period between the 2010 judgement and eventual second Court ruling

Today's decision to refer Portugal back to the Court, with a view to imposing financial penalties, follows a previous Court referral decision from the Commission in March 2012 (IP/12/287). The Commission has taken into account the progress made by the Portuguese authorities since then, in particular through the publication of invitations to tender, and has therefore proposed a reduced lump sum.

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

Commission refers Bulgaria to Court over DTT frequency assignment

"The European Commission has decided to refer Bulgaria to the EU's Court of Justice over the assignment of digital broadcast spectrum. The Commission found that the procedure followed by Bulgaria was based on disproportionately restrictive award conditions, leading to the exclusion of potential candidates. This hampers competition in the future Bulgarian digital terrestrial television (DTT) infrastructure market, in breach of the applicable EU Directives on electronic communications (see background). 

The efficient reallocation of radiospectrum as a result of the transition from analogue to digital broadcasting (the 'digital dividend') is part of the EU’s policy objectives under the Digital Agenda. In order to ensure that this process leads to the entry of new players capable of enhancing competition in the market and expanding viewer choice, the Commission has adopted a set of rules for the allocation of this extra spectrum capacity (the "competition", "authorisation" and "framework" Directives, see background). These rules require that spectrum is allocated under open, transparent, objective, non-discriminatory and proportionate criteria.

The Commission considers that Bulgaria did not comply with the requirements of the Competition Directive when it assigned in 2009 the five spectrum lots available via two contest procedures, limiting without justification the number of companies that could potentially enter the market. Moreover, the selection criteria of the contest procedures were disproportionate, refusing applicants that had links with content providers (TV channels operators), including operators active only outside Bulgaria, or with broadcasting network operators, in breach of the three directives.

In March 2012, the Commission requested the Bulgarian authorities to address the breach of EU law and allow effective entry into the Bulgarian DTT infrastructure market. Bulgaria had announced the launch of a new tender procedure for the assignment of further spectrum. However, this spectrum will not be available before 1 September 2013, date of the analogue switch off. It is expected that current TV channels will enter into agreements with broadcast network operators before the switchover so as to be broadcast on the new DTT infrastructure on that date. There is a strong likelihood that there will be no business case for an operator entering after that date. The Commission has therefore decided to refer Bulgaria to the Court." (see press release).

Court finds Greek law providing exclusive rights to OPAP on gambling incompatible with EU law

The CJEU delivered its decision in Joined Cases C-186 and 209/11, the operative part of which reads as follows:

"1.      Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which grants the exclusive right to run, manage, organise and operate games of chance to a single entity, where, firstly, that legislation does not genuinely meet the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner and, secondly, where strict control by the public authorities of the expansion of the sector of games of chance, solely in so far as is necessary to combat criminality linked to those games, is not ensured. It is for the national court to ascertain whether this is the case.
2.      In the event that the national legislation governing the organisation of games of chance is incompatible with the Treaty provisions on the freedom to provide services and the freedom of establishment, the national authorities may not refrain from considering applications, such as those at issue in the main proceedings, for permission to operate in the sector of games of chance, during a transitional period.
3.      In circumstances such as those of the main proceedings, the competent national authorities may examine applications for permission to organise games of chance submitted to them according to the level of consumer protection and the preservation of order in society that they intend to uphold solely on the basis of objective, non-discriminatory criteria.".

Wednesday, 23 January 2013

Moldova's NRA proposes modification of relevant markets list

"The National Regulatory Agency for Electronic Communications and Information Technology (ANRCETI) has placed on its web page, for public consultations, the draft (doc. in state language) modifications to ANRCETI Administrative Board Decision no.85 of 28.04.2009, on defining the list of relevant markets of electronic communications networks and/or services. The consultations are planned to last till February 4, 2013, this being the deadline for stakeholders to submit recommendations on this draft document.

The draft document provides for the repeal of section 10 of the Annex to ANRCETI Board Decision No. 85 of 28.04.2009. This means that Market 10 (Services of physical access to associated infrastructure of electronic communications networks), a market defined by the mentioned decision as susceptible to ex ante regulation, will be excluded from the list of relevant markets of electronic communications networks and/or services.

The Explanatory Note (doc. in state language) to the draft document contains the rationale arguments for the need to modify the decision. Two of the main arguments are: a) the need to bring the asymmetric (ex ante) regulations for access to network infrastructure at fixed locations in line with EU regulatory practices for significant market power and b) the existence of a gap in the legal framework, prohibiting ANRCETI to designate the provider that holds below 35% of a market as having significant power on that market (under Article 52 of Law on Electronic Communications, a provider, holding less that 35% of a relevant market, cannot be designated as having SMP on that market). ANRCETI identified these constraints after the analysis of Market 10 and public consultations (February - March 2012).

Having examined this state of things, ANRCETI decided to suspend the analysis of market 10, in order to subsequently exclude it from the list of markets defined by ANRCETI as susceptible to ex ante regulation. Also, pursuant to EU regulatory practices and Recommendation 2010/572/EU of 20.09.2010 on regulated access to next generation access networks (NGA), ANRCETI found it necessary to regulate the SMP of "Moldtelecom" on the market for access to ducts and telephone poles within the remedies for Market 4 (access to network infrastructure at a fixed location). Regarding the access to radio towers, ANRCETI will propose that this type of access be subject to symmetrical regulation by introducing the corresponding changes and amendments to the Regulations on Interconnection. According to ANRCETI’s opinion, this approach best meets the goal of efficient sharing of the infrastructure associated with radio communications networks between interested providers." (see press release).

OFCOM consults license exemption for SRD and RFID use in 870-876 MHz and 915-921 MHz

"1.1. Ofcom last published an update on the release of the bands 872-876 MHz and 917-921 MHz in February 2010 following earlier consultations in 2009 and 2006. In this consultation we provide a further update and set out a proposed decision to release this spectrum for Short Range Devices (SRDs) and Radio Frequency Identification (RFIDs) on a licence exempt basis. Since our update in 2010, work by the Conference of European Posts and Telecommunications Administrations (CEPT) and European Telecommunications Standards Institute (ETSI) on the future use of these bands has progressed significantly. As a result it has become clear that it will be feasible for a number of key applications, including SRDs, RFIDs and GSM-R (mobile communications for railway operators), to effectively share these bands. The international work is planned to result in a change to the CEPT Recommendation for SRDs and RFIDs on use of these bands by these applications in 2013. In addition, the Ministry of Defence (MOD) has announced that it plans to release 870-872 MHz and 915-917 MHz to Ofcom or, following consultation within Government, transfer management to another Government department. 

1.2 In light of these and other developments, we propose to release this spectrum on a licence exempt basis with technical conditions that enable SRD and RFID use..." (see related page).

OFCOM consults on proposed changes to BT and KCOM’s regulatory and financial reporting

OFCOM consults on proposed changes to BT and KCOM’s regulatory and financial reporting (see related page).

UK's 4g auction main phase starts

"The UK’s largest ever mobile spectrum auction is now under way, with seven bidders competing to acquire new airwaves suitable for superfast mobile broadband services.
The following organisations are bidding in the auction:
  • Everything Everywhere Limited
  • HKT (UK) Company Limited (a subsidiary of PCCW Limited)
  • Hutchison 3G UK Limited
  • MLL Telecom Ltd
  • Niche Spectrum Ventures Limited (a subsidiary of BT Group plc)
  • Telefónica UK Limited
  • Vodafone Limited " (see press release).

Commission fines Telefónica and Portugal Telecom for illegal non-compete contract clause

"The European Commission has imposed fines of € 66 894 000 on Telefónica and of € 12 290 000 on Portugal Telecom for agreeing not to compete with each other on the Iberian telecommunications markets, in breach of Article 101 of the Treaty on the Functioning of the European Union (TFEU) which prohibits anti-competitive agreements. In July 2010, in the context of the acquisition by Telefónica of the Brazilian mobile operator Vivo, which was until then jointly owned by both parties, the parties inserted a clause in the contract indicating they would not compete with each other in Spain and Portugal as from the end of September 2010. The parties terminated the non-compete agreement in early February 2011, after the Commission opened antitrust proceedings.


Instead of competing with each other for offering clients the most advantageous conditions, as is expected in an open and competitive market, Telefónica and Portugal Telecom deliberately agreed to stay out of each other's home markets. By preserving the status quo in Spain and Portugal, the agreement hindered the integration process of the EU telecoms sector. Non-compete agreements are one of the most serious violations of EU competition rules, as they potentially result in higher prices and less choice for consumers." (see press release).

EDPS issues 2013 - 2014 Strategy Plan

The European Data Protection Supervisor issued its 2013 - 2014 Strategy Plan (see press release as well).

Tuesday, 22 January 2013

Court delivers judgment in Sky Österreich case

The CJEU delivered its judgement in Case C-283/11 concerning the validity of art. 15(6) of Directive 2010/13 in light of art. 16 and 17 of the Charter. The case concerned whether, the envisaged under the said provision of the Directive, "limited" compensation owed to the broadcaster that acquired the broadcasting rights of the event of high interest, from the broadcaster that makes a respective request for the purpose of making short news reports, is in breach of art. 16 and 17 of the Charter.

The Court decided that "Consideration of the question raised has not disclosed any factor of such a kind 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)".

Friday, 18 January 2013

Bulgarian NCA issues corporate programmes compliance guidelines

"Bulgarian Competition Authority has adopted Guidelines regarding the compliance of corporate programmes with the competition rules." (see the NCA's press release).

EDPS inventory and priorities for 2013

EDPS has issued its inventory and priorities for 2013 (see press release).

Portuguese Digital Agenda

"The Digital Agenda for Portugal, published in Diário da República (Official Journal) on 31 December (Resolution of the Council of Ministers no. 112/2012), aims to stimulate the digital economy and the information, communications and electronics technologies sector, through the use and development of tradable and competitive goods and services for international markets.
In line with the priorities set out in the Digital Agenda for Europe and the Europe 2020 Strategy, Portugal's National Agenda envisages strong involvement by civil society and by the private sector, especially in the information and communication technologies (ICT) sector, entailing the launch of a raft of initial measures to be implemented by 2016, in the following six action areas:
  • broadband access and access to the digital market;
  • investment in research and development (R&D) and innovation;
  • improving digital literacy, inclusion and qualification;
  • combating tax and contributory fraud and evasion;
  • addressing societal challenges;
  • entrepreneurship and internationalization of the ICT sector.
The Digital Agenda for Portugal sets out the following objectives:
  • promote the development of broadband infrastructure so that citizens have access to broadband speeds of 30 Mbps or more, by 2020;
  • promote the development of broadband infrastructure so that 50 per cent of households have access to broadband Internet with speeds of 100 Mbps or more, by 2020;
  • create conditions enabling an increase of 50 percent, compared to 2011, in the number of businesses using e-commerce in Portugal by 2016;
  • promote the use of online public services, so that they are used by 50 percent of the population, by 2016;
  • create conditions enabling a 20 percent increase in ICT exports, in accumulated terms, by 2016, over 2011;
  • promote use of new technologies, so that the number of people who have never used the internet can be reduced by 30 percent, by 2016.
Overall coordination and oversight of the Digital Agenda for Portugal falls to the Inter-ministerial Committee, assisted by the Technical Committee of Digital Agenda for Portugal. The Technical Committee, which will include a representative from ANACOM, is also responsible for defining the annual plan for implementation of the Agenda's measures, for securing necessary resources and for timings and for coordinating with bodies of the public administration and private sector organisations." (see ANACOM's press release).

Tuesday, 15 January 2013

OFCOM undertakes dispute brought by Talk Talk against Openreach over LLU services - UPDATE

"BT is subject to regulatory obligations in relation to LLU services pursuant to conditions imposed under section 45 of the Act, including a requirement to provide LLU services (including MPF New Provide) on fair and reasonable terms and conditions.
This dispute concerns the level of service provided by Openreach (a BT Group business) for MPF New Provides.
MPFs (metallic path facilities) are BT’s copper lines between the local telephone exchanges and the customer premises. These can be rented by other communications providers (“CPs”) to connect to their own networks and provide broadband and voice services to end users.
MPF New Provide is the  LLU service where Openreach provides a new line for a CP (rather than, for example, where the CP takes over an existing line).
When an order is placed with Openreach for it to supply MPF New Provide, Openreach offers its wholesale customer appointment dates for an Openreach engineer site visit to install the product.  
TTG submits that during the period 1 June to 31 August 2012 (“the relevant period”), the average time taken for Openreach to provide appointment availability increased significantly such that the level of service provided was not acceptable. TTG argues that the terms and conditions pursuant to which this service was supplied were not fair and reasonable on the basis that compensation should have been payable where the level of service provided fell below acceptable levels.
Openreach argues that TTG is not entitled to compensation.
TTG and Openreach have failed to agree on whether TTG should be paid compensation by Openreach. TTG therefore referred the matter to Ofcom in December 2012" (see related page).

UPDATE (27/03/2013): OFCOM issues provisional conclusions.

OFCOM opens investigation over non migration of customer data by BT under the latter's Undertakings

"On 8 January 2013 BT confirmed that as at 31 December 2012 it had not migrated 90 per cent of BT’s Customer Side Records relating to the Measured Products held on Operational Support Systems shared between Openreach and the rest of BT to at least Level 2 System Separation. Ofcom has therefore opened an investigation into whether BT is in breach and whether enforcement action is required" (see related page).

Maltese NRA issues Strategic Plan Update for 2013 - 2015

MCA issued its Strategic Plan Update for 2013 - 2015.

ANACOM extends till 26 April 2013 DTT subsidy

"ANACOM has decided on a draft decision to extend the term of the DTT subsidy programme until 26 April 2013, the date which marks one year from the completion of the shutdown of analogue television." (see press release of the Portuguese NRA).

LIBE Committee releases study on cybercrime and privacy protection over the cloud

The European Parliament's LIBE Committee released a study on cybercrime and privacy protection over the cloud.

Commission consults on regional 2014-2020 state aid guidelines

The European Commission launched its consultation on its draft regional 2014-2020 state aid guidelines (see related page).

Friday, 11 January 2013

Spanish NCA opens proceedings against Telefonica

"The CNC has opened formal proceedings against Telefónica Móviles España for possible anti-competitive practices in the provision of mobile services to business customers" (see press release).

Greek Minister states that digital switch over will take place in 2013 and that the FttH project will start in 2015

Greek Minister of Development stated that digital switch over will take place in 2013 and that the FttH project which will cost around 1 billion euros will start in 2015 (see press release, in greek).

AGCOM consults on accounting separation and interconnection guidelines

AGCOM consults on accounting separation and interconnection guidelines (in italian).

AGCOM issues decisions on universal service net cost and QoS

The Italian NRA issued its decisions on universal service distribution and measurement of the net cost (in italian) and QoS (in italian).

AGCOM consults on TI's WLR and bitstream services reference offers

The Italian NRA launched its consultation on Telecom Italia's WLR (in italian) and bitstream services (in italian) reference offers.

Commission's Art. 7 Comments on OPTA's FttO-ODF access and HQ WBA market reviews

The European Commission made the following comments in its decision addressed to the Dutch NRA on the latter's reviews of the  market for unbundled access to business fibre networks and the market for high-quality wholesale broadband access and leased lines:

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

The Commission notes that OPTA proposes to mandate cost-oriented tariffs for both FttO ODF access and HQ WBA/LL and that the methodologies to set those regulated tariffs differ. OPTA intends to set regulated HQ WBA/LL tariffs on the basis of the EDC methodology which it has always used for setting regulated access prices to KPN's fixed network. The regulator does not see grounds to deviate from this approach since the active network elements of HQ WBA/LL have already been invested in, are shared between different services and have a shorter economic life cycle than passive network elements (i.e. FttH and FttO). Instead, for FttO ODF access, as for FttH ODF access, OPTA intends to set regulated prices on the basis of the DCF methodology which it considers particularly suitable for new services, for which the demand is uncertain and the initial investment costs high, as it leads to stable and predictable tariffs over the entire lifetime of the asset. The Commission also notes that OPTA proposes to apply different costing methodologies for the various cost elements in the ND-5 margin squeeze test, partly derived from the choice of different cost orientation methodologies and partly reflecting the level of competition in the market. OPTA also confirmed in its response to the request for information that the local loop unbundling ND-5 margin squeeze test outcome would have precedence over cost orientation to set the regulated price of HQ WBA/LL.

The Commission underlines that with regard to FttO ODF access and HQ WBA/LL it is unclear from the present notification whether OPTA's use of distinct methodologies for the price control obligation and in particular within the margin squeeze tests, will send reliable buy or build signals for investment in NGA infrastructures in the Netherlands. The Commission also notes in this regard that OPTA plans to consider in more detail, during the preparatory discussions with market parties to be held prior to submitting the forthcoming implementing tariff decision to the EU consultation procedure in the second half of 2013, different balancing options, such as deviating from the cost causality principle and allowing for "per area type" and "benefits perceived" tariff differentiations.

OPTA's forthcoming implementing tariff decision should provide a clearer picture of the actual tariff choices and calculation outcomes, and therefore of the relative pricing of copper and fibre-based business services. In this regard, the Commission invites OPTA to exhaustively describe and justify in its forthcoming tariff notification what regulatory choices it has made, and the impact these regulatory choices have on the final regulated tariffs in the Netherlands. OPTA should also analyse the interaction between the price control obligations resulting from the implementing tariff, the ND-5 obligations, and the other imposed obligations such as the near-net obligation, which will have an impact on the capacity of access seekers to replicate the SMP operator's offer in this market. OPTA should similarly analyse, explain and justify the direct and indirect impact that the proposed regulatory obligations on KPN will have on other infrastructures and their capacity to compete.

Therefore, the Commission invites OPTA to further explain in its final measure and in the implementing tariff decision how the overall regulatory outcome with regard to the entirety of markets 4 and 5 in the Recommendation on Relevant Markets satisfies the regulatory principles of safeguarding competition and promoting efficient investment in Article 8.5(c) and (d) of the Framework Directive.

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 that sets out the regulatory principles to enhance the broadband investment environment: it will provide guidance on the implementation of the non-discrimination obligation and costing methodologies for key access prices. The Commission therefore invites OPTA to review its costing methodologies in the light of the forthcoming recommendation once adopted.

The Commission also 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, OPTA should consider imposing at least 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. OPTA may consider engaging as soon as possible in dialogue with stakeholders to assess the feasibility of implementing EoI in the Netherlands;

(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, OPTA should lift the cost orientation requirement for the SMP operator’s fibre lines as soon as the above safeguards are effective in the Netherlands and OPTA 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 well-developed alternative infrastructures with comparable reach."

Commission's Art. 7 Comments to the UKE on its notified draft decision concerning dispute settlement in the mobile termination market

The European Commission made the following comments, in its decision adressed to the Polish NRA on the latter's notified draft decision concerning dispute settlement in the mobile termination market:

"Need to promote regulatory efficiency, transparency, certainty, and nondiscrimination in MTR regulation in Poland

The Commission notes that in the currently notified draft measures UKE intends to confirm the validity of MTRs which were already imposed in immediately enforceable regulatory measures.

The Commission would like to reiterate its concerns that the present disputes, and hence the need for frequent regulatory intervention, are the result of inefficient regulation of MTRs in Poland.

The Commission takes note of UKE's argument that fines for lack of compliance with regulatory obligations would potentially be much lower than the benefits derived by MNOs from high MTRs and therefore would not immediately bring the desired effect. Nevertheless the Commission considers that UKE should not accept a situation in which MNOs do not respect regulatory decisions and can therefore considerably delay compliance with obligations imposed on them.

The Commission would like to emphasise that UKE has never in the past imposed a penalty for non-compliance with its MTR decisions and has in fact encouraged operators to engage in individual disputes, where no agreement could be reached over terms of interconnection.

In that regard the Commission highlights the changes brought about by the amended Framework Directive, in particular its Article 21a according to which UKE should be able to impose appropriate, effective, proportionate and dissuasive penalties.

The Commission considers it therefore inappropriate to continue settling individual disputes rather than eliminating such disputes by means of strict enforcement of UKE's price setting decisions. UKE's current approach requires unnecessarily frequent regulatory interventions, is overly bureaucratic and leads to excessive regulatory costs in Poland.

The proposed regulatory approach requiring the resolution of numerous disputes is moreover in opposition to the Common Statement by UKE, the Commission and BEREC, according to which, "[...] regulatory obligations, including the level of MTRs, are legally binding for the addressees of SMP decisions and should be executed and implemented immediately after the relevant decisions are issued, without any additional need for the regulator to intervene in bilateral interconnection agreements on the set level of MTRs."

Furthermore, the Commission points out that, in light of Article 8(5) a) and b) of the Framework Directive, UKE should ensure a consistent regulatory approach and that there is no discrimination in the treatment of undertakings providing electronic telecommunication networks and services. Against this background, UKE's approach to amend interconnection agreements of only three pairs of operators, at the request of one of them, might create heterogeneous, discriminatory competitive conditions in Poland.

The Commission notes that beside the three pairs of interconnection contracts subject of the notified dispute settlement decisions, there are numerous (potentially hundreds, including those between the largest MNOs, with fixed and international operators) interconnection agreements, which are not affected by UKE's proposed measures. This could potentially lead to a de facto asymmetry of MTRs in Poland as the MNOs will be in a position to delay the implementation of UKE's regulatory measures depending on the state of individual dispute resolutions.

Consequently, the Commission urges UKE to enforce its regulatory decisions and to impose dissuasive penalties in case of non-compliance instead of engaging in individual dispute settlements (separately for specific pairs of operators)."

Tuesday, 8 January 2013

EP's draft report on data reform package

EP's draft report on the data reform package (see for further info as well).

Greek Authority imposes anew penalty of 50,6 million euros on Vodafone in eavesdropping case

ADAE (the Greek Authority for Communication Security and Privacy) was required to repeat the administrative hearing of the case as regards the infamous eavesdropping case (see older post on the relative judgment of the Supreme Administrative Court). After the new hearing of the case, the Greek Authority imposed again a penalty of 50,6 million euros on Vodafone (see press release, in greek).

BEREC and the FCC implement Memorandum of Cooperation

BEREC and the FCC implement Memorandum of Cooperation (see press release of the Greek NRA, the President of which resumed BEREC's presidency on 01/01/2013, in greek).

Monday, 7 January 2013

OFCOM undertakes dispute relating to LLU MPF to WLR + LLU SMPF simultaneous migration offer - UPDATE

"This dispute concerns a special offer provided by Openreach (a BT Group business) for LLU MPF to WLR + LLU SMPF simultaneous migration as notified in Openreach ACCN: OR301 of 12 September 2012 (the “Special Offer”)" (see OFCOM's related page).

UPDATE (19/03/2013): OFCOM issues provisional conclusions (see related page).

UPDATE (26/04/2013): OFCOM issues final determinations (see related page).

Polish NRA adopts new MTRs

"The President of the Office of Electronic Communications (UKE) has defined new regulatory obligations and Mobile Termination Rates (MTRs) for seven mobile operators. From 1 January 2013, reduced MTRs will be obligatory in settlements between the operators.
The decisions signed by the President of UKE, Magdalena Gaj, on 14 December 2012 (and delivered to all mobile operators on December 17, 2012), concern the designation of significant market power in the market for call termination on mobile networks (so-called "market 16") as well as imposing, maintaining and changing the regulatory obligations of the following operators:
  • Aero2 Sp. z o.o.
  • Centernet S.A.
  • Mobyland Sp. z o.o.
  • P4 Sp. z o.o.
  • Polkomtel Sp. z o.o.
  • Polska Telefonia Cyfrowa S.A.
  • Polska Telefonia Komórkowa Centertel Sp. z. o.o.
The decisions introduce new termination rates (MTR - Mobile Termination Rate) at a uniform rate for all mobile networks. In the first half of 2013, the operators will be allowed to use a transitional MTR equal to PLN 0.0826 per 1 minute of a voice call. However, from 1 July 2013 the target MTRs will enter into force for all mobile network operators at the level of PLN 0.0429 per 1 minute, based on an efficient operator's model developed by the President of UKE. Depending on the mobile network operator, the target reduction of MTR in wholesale settlements will range from 65% to 85%.

According to the President of UKE, the implementation of new rules into the settlements between the operators, introduces the symmetry in charges for calls between mobile networks, which was awaited by the customers and which should translate into further decreases in retail prices for mobile calls.
The decisions of the President of UKE on introducing new MTRs were approved by the European Commission. In its comments on the new approach to the regulation of MTRs, the Commission recommended to introduce symmetric MTRs from the beginning of 2013 (i.e. in the same amount for all mobile operators) at a cost-efficient level. At the same time, after analysing the arguments submitted by the President of UKE, the Commission agreed to the application of a transitional rate in Poland and to the target MTR equal to PLN 0.0429 per minute, to apply from 1 July 2013, in order to enable Polish operators to prepare necessary changes.

At the same time the President of UKE emphasizes that SMP decisions are immediately enforceable. This means that the regulatory obligations imposed under these decisions and lower MTRs should be implemented by mobile operators by means of appropriate annexes to the agreements between them, immediately after the decisions are delivered and without the need for further intervention of the President of UKE, which was also reiterated by the European Commission in the course of works on the decisions setting the level of MTRs in the Polish market" (see UKE's press release).

Amedment to Polish Telecoms Law enters into force

"On December 10, the President of Poland Bronisław Komorowski signed an amendment to the Telecommunications Act adjusting the Polish law to EU regulations. The new rules will come into force 30 days after their publication in the Official Journal.

Changes resulting from the European regulations are aimed at extending the powers of subscribers and users, strengthening the protection of personal data and increasing competition in the telecommunications market.

The amendment introduces (among others) the possibility of concluding an agreement in electronic form and the obligation to inform the customer about exceeding the data transmission limit. It is also important that the time of porting a number to another telecommunications network shall be no longer than one day. In addition, the new rules reduce data retention time for operators to 12 months (currently it is 24 months).

Particularly important to all customers are the provisions relating to agreements, rules and tariffs, which must be defined in a manner understandable and accessible to customers. When the new legislation enters into force, the operators will lose the ability to impose unfavourable, long-term agreements - the first agreement shall not be signed for a period longer than two years. Customers will also gain the option to sign agreements shorter than a year.

Another important change is the possibility of concluding agreements using digital forms available on the operators' websites. New regulations help the customer in making informed decisions about entering into an agreement, which could be concluded without visiting stores and customer service points and after careful consideration of the proposed terms of the agreement." (see UKE's press release).

UKE issues regulatory strategy till 2015

The Polish NRA has issued its regulatory strategy till 2015 (see press release).

Polish NRA issues decision on Reference Offer on access to cable ducts owned by TP

"On 23 November 2012, the President of UKE issued a decision determining new conditions for access to cable ducts owned by Telekomunikacja Polska S.A. (TP)" (see UKE's press release).

Belgian Constitutional Court finds fines for breach of eu competition law not tax deductible

"In its judgment of 20 December 2012, the Belgian Constitutional Court held that allowing tax deductibility for fines imposed for the infringement of the EU competition rules would affect the effectiveness and the consistent application of the competition rules. The possibility of having such fines deducted for tax purposes would jeopardise the attainment of the Union's objectives and would therefore run counter to Art 4(3) TEU (see paragraphs B.13 to B.15 of the judgment). The Constitutional Court thus followed the reasoning of the ECJ in Case X BV (C-429/07) and, because of the reasoning contained in that ECJ judgment, did not consider it necessary to refer the question to the ECJ." (see the Commission's related page on amicus curiae observations).

Commission sends Samsung SOs on standard-essential patents

"The European Commission has informed Samsung of its preliminary view that Samsung's seeking of injunctions against Apple in various Member States on the basis of its mobile phone standard-essential patents ("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust rules. While recourse to injunctions is a possible remedy for patent infringements, such conduct may be abusive where SEPs are concerned and the potential licensee is willing to negotiate a licence on Fair, Reasonable and Non-Discriminatory (so-called "FRAND") terms. The sending of a Statement of Objections does not prejudge the final outcome of the investigation.


Standards bodies generally require members to commit to license patents that they have declared essential for a standard on FRAND terms. This commitment is designed to ensure effective access to a standard for all market players and to prevent "hold-up" by a single SEP holder, since access to those patents which are standard-essential is a precondition for any company to sell interoperable products in the market. At the same time, it allows SEP holders to be fairly remunerated for their intellectual property.

The Samsung SEPs in question relate to the European Telecommunications Standardisation Institute's (ETSI) 3G UMTS standard, a key industry standard for mobile and wireless communications. When this standard was adopted in Europe, Samsung gave a commitment that it would license the patents which it had declared essential to the standard on FRAND terms. In 2011, Samsung started to seek injunctive relief before courts in various Member States against Apple based on claimed infringements of certain of its 3G UMTS SEPs.

Today's Statement of Objections sets out the Commission's preliminary view that under the specific circumstances of this case, where a commitment to license SEPs on FRAND terms has been given by Samsung, and where a potential licensee, in this case Apple, has shown itself to be willing to negotiate a FRAND licence for the SEPs, then recourse to injunctions harms competition. Since injunctions generally involve a prohibition of the product infringing the patent being sold, such recourse risks excluding products from the market without justification and may distort licensing negotiations unduly in the SEP-holder's favour. The preliminary view expressed in today's Statement of Objections does not question the availability of injunctive relief for SEP holders outside the specific circumstances present in this case, for example in the case of unwilling licensees." (see the press release and Q&A).

Study on the Evaluation of BEREC and the BEREC Office

Study on the Evaluation of BEREC and the BEREC Office

Commission's Art. 7 Comments to Danish NRA regarding its draft regulatory decisions in the fixed call termination market

The European Commission  made the following comment in its decision addressed to DBA on the latter's proposed set of extra remedies to Intelecom and TDC and market review of the said market (fixed call termination) for Hi3G, Telia, Telenor and Colt:

"Need for consistency in DBA's decisions for fixed voice call termination

As regards the proposed amendment of obligations requiring TDC to provide termination at regional level, DBA argues that it should be considered as an obligation of access to an ancillary service and that it does not imply changes in the delineation of the termination market of TDC.

The Commission acknowledges that NRAs can under certain circumstances impose remedies in an area outside but closely related to the defined market. However, the Commission notes that the proposed access obligation implies that in case the receiving network has end-users connected to local POIs, the SMP operator will be obliged to provide transit, at no additional charge for the calling operator, from the regional POIs to the local POIs. The Commission is therefore concerned that the proposed remedy may result in the inclusion of the (competitive) transit component in the relevant market, thus going (with respect to TDC) beyond the market delineation as notified in 2011.

However, the Commission notes that the notified measure intends to ensure symmetry between TDC and alternative networks not only with regard to prices, but also to network topology. In that regard DBA considers that a modern, efficient operator of a fixed telephony network would interconnect with other operators in only a limited number of POIs.

In this context, the Commission notes that DBA intends to carry out the full assessment of fixed call termination services of all operators in Denmark in 2013. The Commission urges DBA to finalise the forthcoming review of the relevant market and to adopt the resulting decisions as soon as possible in 2013, thereby ensuring a consistent delineation of the markets for fixed voice call termination in

The Commission also reminds DBA that remedies imposed under Article 16 of the Framework Directive in conjunction with Article 8 of the Access Directive should be based on the nature of the problem identified, proportionate, and justified in the light of the objectives laid down in Article 8 of the Framework Directive. Therefore, the Commission requests DBA to justify in the finally adopted measure why the proposed access obligation is proportionate and in particular why it does not affect the boundaries of the call origination, call termination and transit markets.

Use of historical costs for valuing termination-related products

The Commission notes that, similarly to DBA's approach to IP Vision (in case DK/2012/1383), in specific circumstances services provided in connection to termination on SMP operators' networks could be valued according to historical costs.

The Commission would like to stress that, according to the Termination Rates Recommendation, termination services should be valued on the basis of a BULRIC model, which neither allows compensation for cost elements outside the model, nor the use of historical cost accounting. The Commission is of the view that the above provision should be aligned with the Termination Rates Recommendation at the latest when the pure BU-LRIC model is implemented, i.e. as of 1 January 2013.

Against this background, the Commission welcomes DBA's commitment, provided in the context of the assessment of case DK/2012/1383, to withdraw the provision related to historical costs accounting before the adoption of the currently notified draft measures with respect to all SMP operators on their respective termination markets. Moreover, the Commission recalls that the same
principle should apply to all (both fixed and mobile) termination markets.

In its second decision related to the fixed call termination market, the European Commission  made the following comment addressed to DBA on the latter's proposed imposition of additional remedies on alternative operator (IP Vision):

"Need for consistency in DBA's decisions for fixed voice call termination

The Commission notes that 2011 market decisions with respect to Telia, Telenor and Colt are no longer valid. This implies that the termination markets for these three operators are defined differently as compared to those of other fixed operators in Denmark. This further implies that Telia, Telenor and Colt are not obliged to provide access to fixed call termination at regulated prices, which currently results in price asymmetries on the relevant termination market(s).

Against this background and in the context of DBA's pending notifications with respect to fixed call termination markets in Denmark, the Commission calls upon DBA to ensure consistency on the relevant termination market(s) and to adopt the draft market decisions notified in cases 1385 and 1400 as soon as possible, and in line with the forthcoming Commission position with respect to those cases.

Use of historical costs for valuing termination-related products

The Commission notes that in specific circumstances services provided in connection to termination on IP Vision’s network could be valued according to historical costs. DBA refers to cases where such services cannot be based on a LRAIC methodology, e.g. because such services are introduced on the relevant market after the finalisation of the LRAIC model.

The Commission would like to stress that, according to the Termination Rates Recommendation termination services should be valued on the basis of a BULRIC model, which neither allows compensation for cost elements outside the model, nor the use of historical cost accounting. The Commission is of the view that the above provision should be aligned with the Termination Rates Recommendation at the latest when the pure BU-LRIC model is implemented, i.e. as of 1 January 2013. Against this background, the Commission welcomes DBA's commitment to withdraw the provision related to historical costs accounting before the adoption of the currently notified draft measures (cases DK/2012/1383 and DK/2012/1400). Moreover, the Commission would like to recall that the same principle should apply to all (both fixed and mobile) termination markets.

Furthermore, as regards the imposition of any form of price regulation on new services and/or resulting amendment(s) to the relevant cost model, the Commission would like to remind DBA that such measures constitute material changes that might have appreciable impact on the market and should therefore be notified according to the Article 7 consultation procedure."

Friday, 4 January 2013

German NCA fines major broadcasting groups over encryption

"The Bundeskartellamt has imposed fines totalling approx. € 55 million on the two TV broadcasting groups Pro7Sat1 and RTL as well as on two individuals involved. The companies are accused of having entered into anticompetitive agreements when they introduced the encryption of their digital free TV programmes. The two broadcasting groups have now undertaken to offer their major SD programmes unencrypted for a period of ten years. This commitment covers the cable, satellite and IPTV transmission paths. It does not include the encryption of HD programmes.

Andreas Mundt, President of the Bundeskartellamt: "According to the Bundeskartellamt's investigations, the two broadcasting groups agreed in 2005/2006 that, as of then, they would broadcast their SD digital free TV programmes only in encrypted form and charge an additional fee. The broadcasting groups also planned to make use of technical measures such as anti-ad blockers and copy protection functions to restrict the TV viewers' options for using the programme signals. These agreements covered the cable, satellite and IPTV transmission paths. They were applied at least until the Bundeskartellamt searched the companies in May 2010, in many networks even longer."

The orders imposing the fines are not yet final and can be appealed to the Düsseldorf Higher Regional Court. However, all the companies have agreed to have the proceedings terminated by settlement.

Furthermore, the Bundeskartellamt has been given binding commitments by both broadcasters to stop the basic encryption of their free TV programmes broadcast in SD throughout Germany from 2013. The two groups will maintain their unencrypted broadcasting in SD for a minimum period of ten years. By giving up the encryption the broadcasting groups lose the basis for charging cable network operators and operators of other transmission paths fees for broadcasting in SD. At the same time the basis for implementing signal protection restrictions will be eliminated.

In the merger proceedings Liberty Global (Unitymedia) and Kabel Baden-Württemberg, the cable network operator Unitymedia had already undertaken a similar commitment to give up basic encryption from January 2013 onwards (see Bundeskartellamt press release of 15.12.2011). The merger could subsequently be cleared.
" (see press release).

OFCOM proposes consumers' contractual exit when prices rise

"Ofcom has today launched a consultation on how to protect consumers from price rises during fixed contracts for landline, broadband and mobile services.

Of the options put forward, Ofcom’s proposed approach is to intervene to allow consumers to exit their contract without penalty if their provider introduces any price increase during the term of the contract.

Alongside this, Ofcom would expect providers to be clear and upfront about the potential for price increases and of the consumer’s right to cancel the contract in the event of any price increase." (see press release and related page).

Vodafone appeals ComReg's MTRs decision

Vodafone appealed ComReg's MTRs decision in so far it imposed a cost-orientation obligation. The Authority stresses that notwithstanding the said appeal, the decision remains in force (see the Irish NRA's press release).

Spanish Goverment approves draft Telecoms Bill

"The bill simplifies administrative procedures to ensure operators invest in the deployment of new networks, restores unity to the market and sets the terms for investment in ultra-fast fixed and mobile networks.

Users will see improved coverage, faster internet speeds and reduced prices and costs. User protection will also improve." (see press release).

FTC and Google reach settlement

"Google Inc. has agreed to change some of its business practices to resolve Federal Trade Commission concerns that those practices could stifle competition in the markets for popular devices such as smart phones, tablets and gaming consoles, as well as the market for online search advertising" (see FTC's related page for further info).

Regulation implementing enhanced cooperation in the creation of unitary patent protection published

Regulation 1257/2012 implementing enhanced cooperation in the creation of unitary patent protection published in the OJ.

Commission Implementinig Regulation on separate sale of retail roaming services published

Commission Implementinig Regulation 1203/2012 on separate sale of regulated retail roaming services published in the OJ.