Friday, 26 April 2013

AGCM initiates proceedings against telecom providers on consumer protection issues

The Italian watchdog has decided to start three separate proceedings against Tim, Vodafone and Wind, to see if the advertising campaigns that offer Internet 'unlimited' offers comply with the provisions of the Consumer Code (see the press release, in italian).

Commission sends SO in smart card chips cartel

"The European Commission has informed a number of suppliers of smart card chips of its preliminary view that they may have participated in a cartel, in breach of EU antitrust rules. The sending of a statement of objections does not prejudge the outcome of the investigation.

Almost everybody uses smart card chips, be it in mobile phone SIM cards, bank cards, passports, identity cards, Pay TVs or in numerous other applications.

The Commission has concerns that certain chips suppliers may have agreed or coordinated their behaviour in the European Economic Area (EEA) in order to keep prices up. This would breach Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the Agreement on the EEA, which prohibit cartels and restrictive business practices.

The Commission initially agreed to explore the possibility of a settlement with the companies involved but has now discontinued the talks due to lack of progress. The normal antitrust procedure will now run its course." (see the Commission's full press release).

Commission seeks feedback on commitments offered by Google

"The European Commission invites comments from interested parties on commitments offered by Google in relation to online search and search advertising. The Commission has concerns that Google may be abusing its dominant position in the markets for web search, online search advertising and online search advertising intermediation in the European Economic Area (EEA). Google has made proposals to try to address the Commission's four competition concerns. Interested parties can now submit their comments within one month. The Commission will take them into account in its analysis of Google's commitment proposals. If the Commission concludes that they address its four competition concerns, it may decide to make them legally binding on Google" (see the press release, FAQ).

Commission issues SAM's evaluation paper

The European Commission issued a Paper on the evaluation of the State Aid Modernisation initiative.

EETT makes public findings on OTE's universal service net cost control

The Greek NRA made public its findings on OTE's universal service net cost control, stating that it is not possible to come to concrete result and calling in the end the incumbent to provide more data (see document, in greek).

French regulator recommends standardised line identification solution for FTTH networks

"For FTTH network rollouts to become increasingly industrialised, one key stage will involve assigning each line an identifier that can be used whenever work is performed on the line, and especially when service orders are placed, to facilitate communications between consumers and their service provider, but also between service providers and building operators. This identifier, which will be the same nationwide, needs to remain consistent over time and be accessible to both customers and technicians performing service calls.

ARCEP has published a recommendation for such a system to be introduced, in a bid to encourage all operators to adopt this type of practice. From a concrete standpoint, the recommendation is for a unique identifier with a standardised 10-character format to be assigned to each line by a line ID administrator - which in most cases will be the building operator that installed the network. This identifier will be displayed on the optical network unit, which will make it easy for the the customer, and technicians when necessary, to locate. Another point to examine is whether to include this identifier on invoices and on customer account pages on operators' websites.

For new buildings where optical fibre systems are installed directly by the original contractor, the building operator will only be designated once construction is complete. ARCEP continues to work with the Objectif Fibre group - which published a handbook on FTTH installations on greenfield sites - on adapting the management and assignment of unique identifiers under those circumstances." (see ARCEP's full press release).

Clarification that small blogs do not fall into UK's proposed press self-regulator scheme

"The government’s Royal Charter proposes a new system of independent, self-regulation of the press which is one of incentivisation rather than compulsion. Those proposals are now being taken forward in the Crime and Courts Bill.

Following the initial debate in Parliament, we have refined the clauses to make it absolutely clear that small blogs are outside of the scheme.

The amendments, which have cross-party agreement, make clear that small blogs will not be classed as ‘relevant publishers.’" (see DCMS' press release).

OFCOM consults on 70MHz future use

"1.7 In this document we provide an overview of the work that Ofcom is planning to undertake regarding the future of the 700 MHz band. We are also seeking input from stakeholders on two specific areas:
  • The factors that are relevant for us to consider when assessing the costs and benefits associated with a potential future change of use of the 700 MHz band. We are also seeking to explore whether market mechanisms, such as an incentive auction, could have a role to play in determining the timing of a future release of the 700 MHz band.
  • The measures that we can and should take, ahead of any future change of use of the 700 MHz band, to reduce the disruption and costs which could result from a change of use of the band.
1.8 Section 2 outlines the areas of work we are planning to take forward to implement our UHF Strategy and the next steps. Section 3 considers our international engagement in relation to a potential future release of the 700 MHz band. The specific questions we are seeking input on in this call for inputs are set out in more detail in Section 4 (on understanding the costs and benefits of a potential future release of the 700 MHz band) and Section 5 (on reducing impact of a potential change of use of the 700 MHz band). It should be noted that, at this stage, we are not specifically asking for input on the detailed mobile band planning work through this call for input" (see OFCOM's full summary and related page).

OFCOM calls inductry to take part in "white spaces" pilot

"Use of these white spaces will allow devices to transmit and receive wireless signals for applications such as broadband access for rural communities, Wi-Fi-like services or new ‘machine-to-machine’ networks.

Ofcom is inviting industry to take part in the pilot, which is intended to take place in the autumn. The locations for the trial will be chosen once trial participants have been identified.

Following a successful completion of the pilot, Ofcom anticipates that the technology could be fully rolled out during 2014, enabling the use of white space devices across the country." (see OFCOM's related page).

Romanian NRA consults on draft Minimum Security Requirements on Incident Reporting Procedure

"The National Authority for Management and Regulation in Communications (ANCOM) launches for public consultation a draft decision on establishing the minimum security requirements to be taken by the providers of public networks or of publicly available electronic communications services. The decision also proposes a procedure by which the providers will report ANCOM the incidents with significant impact on the provision of electronic communications networks and services." (see the NRA's full press release).

Commission adopts Green Paper and consults on converging audiovisual world

"A Green Paper adopted by the Commission today invites stakeholders and the wider public to share their views between now and the end of August 2013, on issues such as:
  • The rules of the game. Fostering the right conditions for dynamic EU businesses to deal with international (especially US) competition; especially given that competing players may be subject to different rules;
  • Protecting European values (including media freedom) and user interests (e.g. protecting children, accessibility for users with disabilities). Do people expect higher protection for TV programmes than for internet content; and where is the line to be drawn?
  • Single market and standards. Seemingly, some devices do not work the same way across Member States. How can we promote the right technological environment?
  • Financing. How will convergence and changing consumer behaviour influence how films, TV shows and other content is financed? How are different actors in the new value-chain contributing?
  • Openness and media pluralism. Should pre-defined filtering mechanisms, for example in search engines, be subject to public intervention? Are the existing practices relating to premium content – for example, major sport events and successful recently released films - at wholesale level affecting market access and sustainable business operations? Are platforms sufficiently open?
This new reality is already being discussed in several EU countries and in the European Parliament. Views differ on how to respond. Some parties call for immediate changes to rules and regulations; some remain satisfied with the status quo for the time being, while others point to self and co-regulation. The Green Paper does not pre-suppose any action, but in following up, the Commission might explore regulatory and policy responses, including self-regulation." (see the Commission's full press release, FAQ and a page with all the paper's versions).

Commission's Art. 7 Comments to the Dutch NRA on the latter's implementation of the DCF-based FttH ODF access tariff regulation

The European Commission made the following comments, in its decision addressed to OPTA on the latter's draft measure implementating of the DCF-based FttH ODF access tariff regulation:

"Price control
The Commission reiterates in the present FttH ODF access price control implementation case the principles of its comment in OPTA's FttO ODF access case NL/2012/1407.
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 recalls that it is currently finalizing a Recommendation that sets out the regulatory principles to enhance the broadband investment environment. This Recommendation will provide guidance on the implementation of the non-discrimination obligation and of costing methodologies for key wholesale access prices. The Commission therefore requests ACM to review its costing methodology in line with the forthcoming Recommendation once adopted.
The Commission also emphasizes that in principle an ex ante price control obligation for fibre infrastructure would not be necessary if there were sufficient competition safeguards in place. In this regard, ACM should consider the proportionality of imposing an Equivalence of Input (EoI) obligation, which generally requires the SMP operator to provide services and information to their access seekers on the same terms and conditions, the same time scales using the same systems and processes with the same degree of reliability and performance, as it does to KPN. As EoI 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. Such a non-discrimination obligation should also include the requirement to ensure technical replicability, foresee milestones setting out the time table for the implementation of relevant key performance indicators as well as service level agreements necessary for the provision of the key regulated wholesale access services, and provide an effective enforcement and monitoring mechanism. ACM should also foresee an economic replicability test that ensures that as a result of the pricing flexibility for NGA access prices, the margin between the relevant retail price and the relevant NGA-basedregulated wholesale access inputs covers the incremental downstream costs and a reasonable percentage of common costs.
Against this background, the Commission asks ACM to engage as soon as possible in dialogue with stakeholders to assess the feasibility of implementing EoI in the Netherlands. It could lift the cost orientation requirement for the SMP operator’s fibre lines as soon as the necessary safeguards are effective in the Netherlands and ACM 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."

Commission sends Netherlands Reasoned Opinion on new super-reguator's independence regarding broadcasting issues

"The European Commission is taking action to ensure the Dutch telecoms regulator, ACM, retains full independence in the application of EU telecoms rules to television broadcasting transmission. The 2009 EU Regulatory Framework for telecoms requires that national regulators have full independence in how they apply market regulation. The Commission believes that current Dutch regulation limits this regulatory discretion by attempting to directly regulate the market in two ways. In the first case, broadcasters subject to "must-carry obligations" are forced to offer for resale their television programmes, as well as the transmission service that carries them, at wholesale level at "cost-oriented" prices (to prevent undue profits). The second provision obliges the ACM to force companies found to have significant market power to resell their programmes to competitors at cost-oriented prices.
The Commission is mainly concerned about how these regulatory provisions were imposed. It should be up to independent regulators to decide on whether such measures should be imposed, rather than the Dutch Government..." (see the relevant page).

Friday, 19 April 2013

FCC consults on NPRM enabling VoIP providers' direct access to numbers

The US Agency launched its consultation on its NPRM enabling VoIP providers' direct access to numbers (see the press release as well).

Commission opens in-depth investigation into proposed UK video games tax relief

"The European Commission has opened an in-depth investigation into the proposed UK video games tax relief. The objective of the measure is to provide an incentive to video games developers to produce games meeting certain cultural criteria. However, the Commission considers that there is no obvious market failure in this dynamic and growing sector and that such games are produced even without state aid. Consequently, at this stage, the Commission doubts that the aid is necessary. The opening of an in-depth investigation does not prejudge its outcome. It gives the UK and other interested parties the opportunity to comment.


The UK intends to introduce a 25% tax relief on a maximum of 80% of the production budget of a qualifying video game for expenditure on goods and services used or consumed in the UK. However, based on the information available at this stage, the Commission doubts whether:
  • aid is necessary to stimulate the production of such video games;
  • limiting expenditure for the tax relief to goods or services 'used or consumed' in the UK would not be discriminatory;
  • offering this type of aid would not fuel a subsidy race between Member States; and
  • the proposed cultural test ensures that the aid supports only games with cultural content without leading to undue distortions of competition." (see the Commission's full press release).

Commission tests commitments proposed by Penguin

"The European Commission is inviting comments from interested parties on commitments offered by Penguin (Pearson Group, United Kingdom). The proposed commitments aim to alleviate concerns that Penguin may have engaged in an anti-competitive concerted practice affecting the sale of e-books in the European Economic Area (EEA). They are substantially the same as those proposed by Simon & Schuster, Harper Collins, Hachette, Holtzbrinck and made legally binding by the Commission in December 2012 (see IP/12/1367). If the market test confirms that Penguin's commitments are suitable to address the Commission's competition concerns, the Commission may make them legally binding on Penguin.

The Commission considers at this stage that Penguin, together with the aforementioned four publishers and Apple may have breached EU antitrust rules that prohibit cartels and restrictive practices by jointly switching the sale of e-books from a wholesale model to agency contracts containing the same key terms (in particular an unusual so-called "Most Favoured Nation" – MFN – clause for retail prices). The agency model allows more control by publishers over retail prices. The Commission has concerns that this switch may have been the result of collusion between competing publishers, with the help of Apple, and may have aimed at raising retail prices of e-books in the EEA or preventing the emergence of lower prices.

In the proposed commitments, Penguin offers to terminate existing agency agreements and refrain from adopting price MFN clauses for five years. In case Penguin would enter into new agency agreements, retailers would be free to set the retail price of e-books during a two-year period, provided the aggregate value of price discounts granted by retailers does not exceed the total annual amount of the commissions that the retailer receives from the publisher." (see Commission's press release).

AGCOM approves TI's NGAN 2012 Reference Offer

The Italian NRA approved TI's NGAN 2012 Reference Offer (see related page, in italian).

Commission adopts report on functioning of online anti-counterfeiting MoU

"The European Commission has ... adopted a Report on the functioning of the Memorandum of Understanding (MoU) on the sale of counterfeit goods via the Internet" (see press release and related page).

Commission's Art. 7 Comments to the Spanish NRA on the latter's review of the broadcasting transmission market

The European Commission made the following comments, in its decision, addressed to CMT on the latter's review of the wholesale broadcasting transmission services market:

"Effectiveness of the access remedy
The Commission noticed that despite the regulatory obligations imposed in the previous rounds of market analyses, there was little development towards effective competition in the relevant market. Concerning the access obligation, the Commission notes that CMT proposes again to impose a general co-location obligation on Abertis as a main obligation and an interconnection obligation as an alternative remedy only in cases where due to technical and/or economical reasons co-location is not feasible. As in the previous market review, the Commission notes that there appears to be no real demand for co-location in Spain. The Commission therefore requests CMT to consider the imposition of a general interconnection obligation in its final measure. Alternatively CMT should monitor market entry via co-location very closely and later impose a general interconnection obligation if needed to allow market entry. The Commission notes that such a general interconnection obligation could be limited in time in order to maintain new entrants' incentives to roll-out their own infrastructure over time."

Commission's Art. 7 Comments to the Spanish NRA on the latter's modified remedies in markets 1 and 5

The European Commission made the following comments, in its decision addressed to CMT on the latter's modified methodology of ex ante assesment of Telefonica's retail products:

"The need for conducting a new market review for market 5

Pursuant to Article 8(4) of the Access Directive, obligations shall be based on the nature of the problem identified, be proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. According to the Framework Directive, NRAs shall decide on whether to maintain, amend or withdraw obligations on undertakings on the basis of a market analysis.
Pursuant to paragraph 6 of Article 16 of the Framework Directive, regulators should carry out their market reviews with in three years from the adoption of the previous measure. In that respect, the Commission notes that CMT carried out the last market review for market 5 in 2008. In the notified draft measure CMT specifically refers to, inter alia, the changing conditions in the retail broadband market and development of alternative operator's market shares as reasons for reviewing the methodology for ex ante assessment of retail offers. In the view of the Commission, these developments in the retail market may be signs of corresponding developments in the wholesale market. In the light of this, and in particular the on-going development of NGA, and the need for regulation to be technology-neutral in line with Article 8 of the Framework Directive, the Commission urges CMT to conclude a market review for market 5 without further delay.
The methodology for ex ante assessment of commercial offers
The Commission welcomes the fact that CMT in its revised methodology for ex ante assessment of commercial offers reduces the number of offers that will be subject to the individual test and focuses the individual test on new and modified permanent offers. Yet, the Commission urges CMT to reassess the proportionality of the aggregate test which in addition to testing new and modified permanent offers will monitor all temporary offers and promotional activities by the SMP operator after their launch. Stability and predictability of legacy wholesale access prices is key to provide a clear framework for investment and to drive competition. A recurrent test as the aggregate test, which includes all relevant offers by the SMP operator, is performed every six months and the failure of which leads to the temporary adjustment of wholesale tariffs by CMT, risks generating legal and economic uncertainty which may negatively affect investments and innovation.
Further, the Commission highlights that the Commission is working towards the adoption of a Recommendation on the consistent application of non-discrimination obligations and cost methodologies to promote competition and enhance the broadband investment environment, which will give some guidance on the design of an ex ante economic replicability test for NGA-based services. This test should be used in case pricing flexibility is granted to the SMP operator for NGA wholesale inputs in the presence of other competitive safeguards. In particular, the Commission points out that the recommended test could be carried out at any time but no later than three months after the launch of the relevant retail product and the NRA should conclude it within the shortest possible time and in any case within four months. Accordingly, the Commission urges CMT to revisit the proposed methodology for ex ante tests of commercial offers along the lines of the forthcoming Recommendation once adopted if CMT were to extend the assessment to include NGA-based services."

ENISA mandate extended

"The European Commission welcomes the vote of the European Parliament in a plenary session today to extend the mandate of the European Network and Information Security Agency (ENISA).

Today's vote (626 for, 45 against) is the conclusion of lengthy political discussions between Council and the European Parliament. A political agreement was reached at the end of January 2013, and EU Ministers formally endorsed the Regulation on 8 February. The new Regulation (see MEMO/10/459) grants ENISA a new 7 year mandate. This is particularly significant given the important role the agency will play in the implementation of the EU Cybersecurity Strategy adopted by the European Commission in January (see IP/13/94).

ENISA will retain its seat in Heraklion, Crete, but will also have a branch office in Athens which brings it closer to its stakeholders and makes the agency more efficient." (see the Commission's complete and ENISA's press release).

Monday, 15 April 2013

OFT investigates free children's web and app-based games

"The OFT has launched an investigation into whether children are being unfairly pressured or encouraged to pay for additional content in 'free' web and app-based games, including upgraded membership or virtual currency such as coins, gems or fruit. Typically, players can access only portions of these games for free, with new levels or features, such as faster game play, costing money." (see the press release).

Commission clears Virgin Media' s acquisition by Liberty Global

"The European Commission has cleared under the EU Merger Regulation the proposed acquisition of UK cable operator Virgin Media Inc., registered in the US, by the US-based company Liberty Global, Inc. The transaction, with a value of €17.2 billion, would bring together the second largest Pay TV operator in the UK (Virgin Media) and the largest cable operator in Europe (Liberty Global). The Commission's investigation confirmed that the transaction would not raise competition concerns, in particular because the parties operate cable networks in different Member States and because of the merged entity's limited market position in the wholesale of TV channels in the UK and Ireland.

Both Liberty Global and Virgin Media acquire audio visual content, such as individual TV programmes and entire TV channels, which they then offer to their subscribers. The Commission examined, in particular, the market for the acquisition of TV content in the UK, Ireland and the European Economic Area (EEA) as a whole. The Commission concluded that the proposed acquisition would not restrict competition in these markets because TV content is licensed mainly on a national basis or for linguistically homogeneous areas and because the merged entity would still face sufficient competitive constraint from other players, such as TV content providers and competing Pay TV retailers.

Moreover, the Commission investigated the vertical link between Liberty Global's activities in the wholesale supply of Pay TV channels (e.g. Extreme Sports Channel, CBS Reality, Horror Channel, etc.) and Virgin Media's activities in the acquisition of these channels and the retail of Pay TV services to customers in the UK. The Commission concluded that the merged entity is unlikely to shut out competing Pay TV retailers by withholding its TV channels from them, given its very limited presence in the wholesale supply of TV channels and the incentive to license its TV channels as broadly as possible. Similarly, it is unlikely that the merged entity would shut out competing TV channel broadcasters from access to the retail Pay TV market, given the number of alternative distribution platforms to Virgin Media’s cable network (e.g. BSkyB's satellite platform) and the importance of offering a large variety of TV channels in order to attract Pay TV subscribers.

The Commission therefore concluded that the transaction would not raise competition concerns. The transaction was notified to the Commission on 6 March 2013." (see press release).

OFCOM consults on non-geographic number ranges billing policy and dispute resolution guidance

OFCOM launched its consultation as regards its 080 and 116 billing policy (here) and dispute resolution guidance (see here and press release).

AGCOM issues dtv licenses auction rules

The Italian NRA issued its dtv licenses spectrum auction auction rules (see related page, in italian).

Conseil d' Etat rejects action for annulment of ARCEP's denial to open a case against Free for non compliance with its 3g license coverage obligation

French Supreme Administrative Court rejected an action for annulment of ARCEP's denial to open a case against Free for non compliance of the latter with its 3g license coverage obligation (see decision, in french).

ADAE consults on draft electronic communications and services safety and integrity Regulation

The Greek Communications Security and Privacy Authority launched its consultation on its draft electronic communications and services safety and integrity Regulation (in greek). It should be noted that about year ago a Ministerial Decision was issued regulating relative issues (see older post here, and the decision, in greek).

ENISA says ISPs fail to apply filters against big cyber attacks

"In its analysis of a recent massive cyber-attack, EU cyber-security agency ENISA today points out that Internet Service Providers (ISPs) have failed to apply well-known security measures which have been available for over a decade." (see press release and document).

Tuesday, 9 April 2013

Belgian NRA issues draft decision on FttH to be included in broadband markets analysis

BIPT issued its draft decision on FttH to be included in its July 2011 broadband markets analysis (see decision, in french).

Commission objects BNetzA's FTRs - UPDATE

"The European Commission has blocked a proposal by the German Telecoms Regulator (BNetzA) to set fixed termination rates three times (300%) higher than the average of countries which follow the recommended approach set out in EU telecoms rules. Termination rates are the rates telecoms networks charge each other to deliver calls between networks, and each operator has market power over access to customers on its own network. These costs are ultimately passed on to consumers and businesses.

Under BNetzA's proposal, fixed termination rates would range from €0.0036/minute (peak) to €0.0025/minute (off-peak). Operators in countries which follow the EC's recommended approach ... pay on average €0.001/minute.


Following the "serious doubts" letter sent today by the Commission, BNetzA now has three months to work with the Commission and the body of European telecoms regulators (BEREC) on a solution to this case. In the meantime implementation of the proposal is suspended." (see the press release).

UPDATE (15/04/2013): Commission's decision is out.

Commission gives green light to the creation of Penguin Random House

"The European Commission has cleared under the EU Merger Regulation the proposed creation of Penguin Random House, combining parts of the publishing businesses of the media company Bertelsmann of Germany and the publishing company Pearson of the UK. The Commission found that the transaction would not raise competition concerns, in particular because the merged entity will continue to face several strong competitors" (see press release).

Commission launches formal investigation into MasterCard inter-bank fees

"The Commission has opened formal proceedings to investigate whether MasterCard may be hindering competition in the European Economic Area (EEA) with regard to payment cards, in breach of EU antitrust rules. The Commission has concerns that some of MasterCard's inter-bank fees and related practices may be anti-competitive. An opening of proceedings does not prejudge the outcome of the investigation.

... In 2007, the Commission already prohibited some of MasterCard's inter-bank fees and the Commission is currently investigating Visa. 

The Commission has now opened an in-depth investigation into:
(i) inter-bank fees in relation to payments made by cardholders from non EEA countries – as opposed to fees for cross border transactions within the EEA that were already prohibited in 2007 (see IP/07/1959 and MEMO/07/590). Such fees apply for example when a US tourist uses his MasterCard credit card to make a purchase at a merchant in the EEA;
(ii) all rules on 'cross-border acquiring' in the MasterCard system that limit the possibility for a merchant to benefit from better conditions offered by banks established elsewhere in the internal market and
(iii) related business rules or practices of MasterCard which amplify the Commission's competition concerns (like the "honour all cards rule" which obliges a merchant to accept all types of MasterCard cards)" (see press release).

Monday, 8 April 2013

ComReg's information notice on third party PIN verification systems

"The Irish NRA issued its information notice on third party PIN verification systems as an alternative means of complying with the Double Opt-in Requirements of the ComReg‟s Premium Rate Services (PRS) Code of Practice (“Code”)".

UK Competition Commission publishes final market investigation guidelines

"The Competition Commission (CC) has published its final guidelines on market investigation references, along with new guidelines on disclosure of information in inquiries" (see related page).

Cypriot NRA accepts Cyta's emergency zero pricing for April with conditions

OCECPR accepted the incumbent's proposed zero pricing for the month April 2013 in an attempt to assist Cypriots overcome the outcomes of the economic crisis that burst, so far as it offers the same conditions to some of its wholesale products as well (mobile and fixed call termination et al)...(see the letter sent to Cyta, in greek).

Greek NRA releases results of OTE's cost control

EETT released its results of its 2013 cost control of the incumbent (in greek).

Art. 29 WP adopts Opinion on purpose limitation

"In their opinion (WP203), the European data protection authorities, assembled in the Article 29 Working Party, assess the principle of purpose limitation with the aim to offer guidance on its practical application under the current legal framework. They furthermore highlight areas for improvement and provide recommendations with regard to the revision of the general data protection legal framework, currently being discussed in the European Parliament and Council" (see the press release).

Friday, 5 April 2013

FCC consults and launches inquiry into safety from radiofrequency emmissions

The US regulator launched its consultation and inquiry as regards safety from radiofrequency emmissions (see NPRM and Notice of Inquiry here).

CC delivers final determinations before CAT in LLU/WLR Charge Control dispute

The Competition Commission delivered its final determinations before CAT regarding the LLU/WLR Charge Control dispute (see related page and CC's press release).

AGCM launches investigation in the wholesale telephone networks' technical services market

The Italian NCA launched its investigation regarding potential price-fixing  in the wholesale telephone networks' technical services market (see press release, in italian).

Belgian NRA consults on cable access tariffs

The Belgian NRA launched its consultation as regards the cable resale and access tariffs (see draft decision, in french).

AGCOM consults on markets 1, 4 and 5 reviews

The Italian NRA launched its consultation as regards the fixed access markets 1, 4 and 5 (see related page, in italian).

Polish regulator investigates ITI Neovision after consumer complaints

"ITI Neovision unilaterally changed the price and transformed n television programme offer into nc+ to these subscribers who had entered into agreements for a specified time – is it a violation of collective consumer interests? The proceedings by UOKiK will clarify the case" (see press release).

Cypriot NRA issues its decision regarding the broadcasting services market review

OCECPR issued its decision regarding the broadcasting services market review including the remedies set for the SMP operator (see decision and cost control of Velister, all in greek).

OFCOM issues final determinations in call termination disputes between EE and BT

OFCOM issued its final determinations in the call termination disputes between Everything Everywhere and BT, regarding the 080 and the 0844, 0843, 0871, 0872, 0873 and 09 number ranges (see related page here and here respectively).

European DPAs coordinated action against Google's privacy

"From March to October 2012, the Article 29 Working Party investigated into Google’s privacy policy with the aim of checking whether it met the requirements of the European Data Protection Directive (95/46/CE). In view of the findings of this analysis which was published on 26 October 2012, the EU Data protection authorities asked Google to comply with their recommendations within 4 months. 

After this period has expired, Google has not implemented any significant compliance measures.

On 19 March 2013, representatives of Google Inc. were invited at their request to meet with the taskforce led by the CNIL and composed of data protection authorities of France, Germany, Italy, the Netherlands, Spain, and the United-Kingdom. Following this meeting, no change has been seen.

The article 29 working party’s analysis is finalized. It is now up to each national data protection authority to carry out further investigations according to the provisions of its national law transposing European legislation.

Consequently, all the authorities composing the taskforce have launched actions on 2 April 2013 on the basis of the provisions laid down in their respective national legislation (investigations, inspections, etc.)

In particular, the CNIL notified Google of the initiation of an inspection procedure and that it had set up an international administrative cooperation procedure with its counterparts in the taskforce." (see the French DPA's press release).

Commission's Art. 7 Comments to OFCOM on the latter's leased lines markets reviews

The European Commission made the following comments, in its decision addressed to OFCOM on the latter's leased lines markets reviews:

"Retail markets
The Commission notes that, pursuant to Article 17(1)(b) of the Universal Service Directive, NRAs should impose appropriate regulatory obligations on undertakings with SMP at retail level only when obligations imposed at wholesale level do not result in the achievement of the objectives of the regulatory framework.
In its previous market review, OFCOM identified and imposed remedies on BT at retail level despite the retail market(s) for leased lines having been removed in 2007 from the list of markets recommended for ex ante regulation. At the time, OFCOM argued that the infrastructure control of BT created a barrier to entry for the retail leased lines market, which was only partially alleviated by wholesale regulation. In principle it was expected that this would have been solved once the relevant wholesale remedies had been fully implemented. In the current market review, however, OFCOM continues to propose regulation at retail level, albeit now for a much smaller segment of the market, i.e. very low bandwidth TI leased lines (excluding the Hull area), and low bandwidth TI and AI retail leased lines in the Hull area. Concerning the case of very low bandwidth TI leased lines, OFCOM justifies retail intervention by the fact that in relation to analogue services there are no upstream wholesale analogue services available to CPs and that BT’s service share of retail analogue services is 96%, almost unchanged since the previous review. OFCOM also points out that because analogue leased lines are a very old technology, wholesale remedies in relation to them were not included when wholesale regulation was originally introduced. OFCOM adds that the integrity of the UK electricity supply would be at risk if ex ante retail regulation was not imposed, because of the risk of BT withdrawing its retail services without sufficient notice for end-users. Furthermore, no effective competition was found and the market is in long-term decline, with BT intending to close its Digital Private Circuit Network (DPCN) in 2018. This means that many users of sub 2 Mbit/s and analogue services will have to migrate before this period, thus limiting the amount of time available for investment recovery, rendering market entry unattractive. OFCOM finally considers there are risks of anti-competitive practices by BT.
While, in principle, the retail markets for leased lines no longer prove to be susceptible to ex ante regulation, the Commission takes note of the analysis and the data provided by OFCOM, which appear to indicate a necessity to continue regulation in the relevant retail markets for a limited period. Nevertheless, while the Commission recognises OFCOM’s arguments for maintaining retail regulation, in particular with regard to the specific needs of certain captive customers who provide key services and who are currently still in the process of migrating from the regulated retail product to different services, the Commission requests OFCOM to monitor the evolution of this migration closely and to withdraw retail regulation as soon as migration has occurred to a sufficient degree, which would render continued retail regulation obsolete.
SMP assessment
The SMP Guidelines determine that the existence of significant market power cannot be established on the sole basis of large market shares, determining a set of criteria that can be used to complement the market share figures in an SMP assessment. Among these criteria is the absence of prospective competition.
For the wholesale Alternative Interface Symmetrical Broadband Origination Market (AISBO) in the West, East and Central London Area including Slough (WECLA+), OFCOM proposes that BT has SMP. It determined a 45% to 55% market share.
Furthermore, it determined: (i) the existence of more physical connections to business sites by BT, (ii) barriers to switching, (iii) the stability of BT’s market shares for the past three years, (iv) no sufficient countervailing buyer power.
OFCOM added, however, that there was also considerable alternative infrastructure within WECLA+, supporting both existing and potential new entrants. It also determined that barriers to entry were lower than outside the WECLA, and that there was a stronger countervailing buyer power due to the existence of alternative CPs. It found that BT’s advantages were not as strong in the WECLA+ as outside this geographic market, although they existed. 
In the light of the fact that OFCOM itself considers the competitive prospects to be ‘positive’ and that this market is likely to show prospective competition in the medium- to long-term future, the Commission requests OFCOM to strengthen in its final measure its reasons for finding SMP in the relevant market."

Commission's Regulation on eCall published in the OJ

Commission Delegated Regulation 305/2013, supplementing Directive 2010/140, on interoperable EU -wide eCall was published in the OJ.

Monday, 1 April 2013

French competition watchdog concurs to ARCEP's planned extension by one year of current leased lines markets ex ante regulation

"The Autorit√© de la concurrence issues a favourable opinion relating to ARCEP's proposition to extend by one year the current regulation of the wholesale market of “leased lines”.

This extension will enable the telecom regulator to analyse simultaneously (mid-2014) several markets, which prove to be complementary: leased lines, local loop access and high-speed network access." (see press release).

PTS makes public its 2012 - 2014 Strategic Agenda

The Swedish NRA made public its 2012 - 2014 Strategic Agenda (see press release).

BIPT issues commissioned report on economic benefits from use of the 790-862MHz band for DTT and mobile broadband

The Belgian NRA made available its commissioned report (in french) on economic benefits from use of the 790-862MHz band for DTT and mobile broadband.

Italian NRA decides on automatic logical canal numbering of digital terrestrial channels

AGCOM issued its decision as regards the automatic logical canal numbering of digital terrestrial channels (see related decision, in italian).

Italian NRA consults on symmetric obligations regime regarding network infrastrucure access

AGCOM launched its consultation on symmetric obligations regime regarding network infrastrucure access (see related page, in italian).