ARCEP relies on a cost-accounting methodology it describes as 'coûts complets distribués' (which shows 0.4 eurocent per SMS MT in 2009, but allows for some additional wholesale commercialisation costs), and in fact relies strongly on commercial agreements already reached by the French mobile network operators (MNOs), given that ARCEP validates the 2.17c temporary asymmetry for Bouygues Telecom, which was agreed by the two other MNOs, Orange France and SFR.

The ARCEP decision follows the publication (which also occurred today) of the European Commission Article 7 comments letter, dated 16 July 2010 (of great interest and briefly discussed below).

Draft decisions from Denmark's ITST and Poland's UKE are in the short-term pipeline.

Denmark's ITST is proposing (although its LRAIC cost model shows a 2010 value of 2 øre per SMS MT), an immediate imposition of a wholesale price-cap on all MNOs (and on an MVNO) set at 16 øre per SMS MT, which amounts to 2.145 eurocent per SMS MT for 2010. A key argument invoked by ITST to refrain from immediately reducing wholesale SMS termination further is to avoid SMS spam (while ARCEP just issued a decision including evidence that SMS spam, which it has considered, results rather from flat-rate retail offers than from wholesale SMS interconnection, including with SMS aggregators that are not MNOs).

Poland's UKE is proposing to impose 'non-excessive pricing' symmetrically on all mobile network operators, set at PLN 0.05 which amounts to 1.238 eurocent per SMS MT (although its cost assessment shows a value 'strongly below 0.01 PLN').

Today's ARCEP decision is of interest for at least two other key reasons:

a)      ARCEP has included a 'reciprocity clause', implying that foreign MNOs would only be entitled to the regulated French wholesale SMS MT rates IF they agree to apply reciprocally the same rate as the French regulated wholesale rates for SMS MT. The European Commission commented that this may not conform to EU law, and may hamper the development of the internal market for SMS services. ARCEP's final decision, Section 5.7.2 (pages 102-104) rejects the European Commission's arguments, and indeed states that NOT imposing the 'reciprocity clause' would distort the internal market to the detriment of French operators (estimated prejudice is €26m/year), and invokes Art 8.2 b) of the Framework Directive 2002/21/EC (NRAs mandate to ensure that there is no distortion or restriction of competition in the electronic communications sector) to justify its measure, i.e. that the market is NOT distorted or restricted against French MNOs.

b)      Beneficiaries from ARCEP's measures on wholesale SMS termination explicitly include authorised operators that are not MNOs, including fixed operators, SMS aggregators, etc. who enter into wholesale access/interconnection agreements with the French MNOs. The European Commission explicitly did not question that the termination of 'SMS Push' services (e.g. those processed by SMS aggregators) is part of the relevant markets for SMS termination. However, the European Commission commented that (further) penetration of (Internet-enabled) smartphones among the population may influence the competitive dynamics of wholesale SMS termination (more so for services facilitated by SMS aggregators than for interpersonal SMS, with explicit reference only to mobile e-mail), potentially reducing the impact of the calling party pays principle for wholesale SMS termination. ARCEP agreed to the European Commission's invitation to closely monitor 'the delivery of content onto mobile devices which may lead ARCEP to no longer include the wholesale termination services for Push SMS services in the relevant market for wholesale SMS termination and to consider removing regulation'. T-REGS Note: the European Commission's comments letter makes no mention of interpersonal Internet-based Instant Messaging (IM) on mobile devices, whereas ARCEP indicates that 24.1% of French mainland mobile users make use of mobile IM.

The following documents are directly relevant to this T-REGS news item:

ARCEP final decision on wholesale SMS termination (available only in French)

European Commission comments letter on ARCEP draft decision wholesale SMS termination (English)

Denmark ITST draft decision on wholesale SMS termination (available only in Danish)

Poland UKE draft decision on wholesale SMS termination (available only in Polish) - PTK Centertel draft decision; other decisions available separately

For a discussion of wholesale SMS termination developments, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Following a lengthy preparatory process (see the T-REGS news item of 28 July 2009) today's Belgian Official Journal contains a law amending the Electronic Communications law of 13 June 2005 "concerning the change of operator".

The new law specifically addresses the circumstances in which an end-user terminates the contract with "a provider of an Internet access service", which has provided that end-user with the possibility to create e-mail addresses or web space based on the trade name or brand name(s) of the provider of the Internet access service. Its aim is to institute a transition period of at least 6 months, during which the end-users will, upon their explicit request, still be able to receive/check e-mail and during which the website(s) of the end-users will remain reachable.

The new law requires the providers of Internet access services to develop a code of conduct and to file this code of conduct with the Belgian telecommunications regulatory authority BIPT/IBPT within 4 months from 16 June 2010.

With regard to e-mail, the code of conduct must provide for two options (the choice between the two options is made by each provider of an Internet access service, not by the end-user):

a) the establishment of an automatic interception mechanism, which forwards electronic mail arriving on the end-users' e-mail address(es) to a new e-mail address to be chosen by the end-user;

b) access to the electronic mail arriving on the end-users' e-mail address(es).

With regard to web space, the code of conduct must specify that the website(s) of the end-user remains accessible, even if the end-user can no longer use the web space via the URL associated with it.

Following a public consultation, the BIPT/IBPT will examine whether the code of conduct filed by the providers of Internet access services meets the requirements of the law. If it does, the providers of Internet access services will publish the code in a manner prescribed by the regulator, and the code will enter into force at the latest 10 months from 16 June 2010. If no code is filed by the providers of Internet access, or if the regulator considers that the filed code does not meet the requirements of the law, the Minister in charge of telecommunications will determine, upon proposal of the BIPT/IBPT, the rules for the provision of the facilities that are the subject of the law.

The forward/access capabilities must be provided to the end-users free of charge, and providers of an Internet access service are required to inform end-users of these possibilities when an end-user indicates that he/she wishes to terminate the contract, and also (within 12 months from 16 June 2010) to include, at least once a year, a clearly legible description of these capabilities on an invoice.

The full text of the law (available only in Dutch and French) is available by clicking here.

For a discussion, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

On 13 April 2010, the Appeals Court (College van Beroep voor het Bedrijfsleven) in Rotterdam annulled the Dutch regulatory authority OPTA's decision on Market 6 (wholesale terminating segments of leased lines) of 19 December 2008.

A key characteristic of that OPTA decision was that it distinguished the market for leased lines up to 20 Mbit/s (‘low capacity') from the market for leased lines above 20 Mbit/s (‘high capacity') at the retail level and at the wholesale level (with regulation adopted only at the wholesale level).

The annulment (following appeals filed by many operators, on various grounds and defending a variety of positions) relates specifically to OPTA's market definition/market segmentation, and is remarkable, as it relies to a great extent on technical detail, and addresses questions surrounding copper and fibre as supply-side and demand-side substitutes.

In particular, the Court's judgment concludes that, in the specific context of leased lines, OPTA should have found that that neither pair-bonded copper nor VDSL2 constitute valid substitutes for fibre.

The Court's judgment was only recently published in its entirety and this now allows us to provide an analysis of the precise reasoning relied upon by the Court.

1. Supply-side: technical analysis - pair-bonding and VDSL2

First of all, the Court considers that OPTA's assessment of the development of certain technical solutions, such as pair-bonding of copper lines, was incorrect. It finds that there appear to be insufficient resources (insufficient number of copper lines serving the premises) in many areas where businesses are located. Pair-bonding is therefore considered by the Court not to be a feasible alternative to high-capacity fibre in these areas. Even if sufficient copper lines are physically present, the Court considers that OPTA has not sufficiently analysed whether they are available to be pair-bonded into high capacity (20 Mbit/s or more) leased lines.

Secondly, the Court considers that OPTA has not sufficiently assessed the length of the copper loops, and the impact thereof on the possibility to achieve high speeds by utilising pair-bonding. The Court states that, in locations where the copper loops are too long, bonded loops will not achieve performance matching a >20 Mbit/s fibre connection.

Thirdly, OPTA has, according to the Court, erroneously assessed the potential of VDSL2, and the Court adds that the asymmetrical nature of VDSL2 makes it only suitable for residential markets but not for business markets (which, according to the Court, require symmetrical connections). Distance from the MDF also plays a role, and hence the suitability of VDSL2 as a substitute for high capacity leased lines should have been more critically analysed. The fact that VDSL2 was not substantially rolled out at the time of the OPTA decision also contributes to the doubts expressed by the Court.

2. Supply-side: proportion of copper/fibre in the >20 Mbit/s segment

The Court's judgment, in the specific context of leased lines, is that OPTA's conclusion that pair-bonded copper can generate disciplinary price pressure on fibre is flawed.

OPTA had not researched the proportion of copper and fibre access used. According to the Court, such research was necessary to ascertain in reality whether copper really exercises sufficient disciplinary price pressure on high capacity fibre, and for OPTA to conclude that they can be placed in the same markets.

The Court adds that re-migration from fibre to copper is not a plausible option, as this would annul the investments already made in fibre.

3. Demand substitution

The Court finds that the data on which OPTA has based itself to research demand substitution is insufficient to come to a valid conclusion, and that OPTA has therefore incorrectly assumed that the data (provided by Dialogic in 2008 in the form of a report) was sufficient to gain insight into this matter. OPTA's conclusion with regard to demand substitutability is therefore ruled invalid by the Court.

The Court also concludes that, in stating that a price comparison of leased lines offers is impossible due to the many different packages and bundles, OPTA has not been able to put forward a solid basis for its statement that there is a price jump between 2 Mbit/s and 34 Mbit/s, which in turn would lead to an absence of demand substitution between leased lines with a capacity up to 20 Mbit/s and leased lines with a capacity above 20 Mbit/s.

The Court therefore concludes that a correct delimitation and definition of low capacity and high capacity leased lines has not been established by OPTA, and that the market analysis decision must be annulled.

OPTA is given 6 months to issue a new decision; in the meantime, the annulled decision stands.

The full text of the CBB judgment (in Dutch only) can be accessed by clicking here.

For a discussion of this case, and its possible implications for other markets, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

This evening, the Belgian Federal Parliament (House and Senate) adopted a Declaration containing the articles of the Constitution that can be amended by the next Federal Parliament.

The Declaration includes two specific articles relating to telecommunications.

Article 23 of the Constitution was declared open to amendment, explicitly with a view to enabling the next Federal Parliament to create a constitutional right for citizens to Universal Service for post, communications and mobility.

Article 29 of the Constitution was also declared open to amendment. This article concerns the secrecy of letters. In the explanatory memorandum filed with the draft of the declaration,  reference was made to the extension of the secrecy of letters  to 'new forms of communication' and 'other forms of correspondence'.

The same Declaration confirms the contents of the Declaration of 2007 (not discussed in detail by the Federal Parliament), which enables institutional reform, including the potential for responsibility over telecommunications to be moved from the Federal level to the federated entities.

Update late 7 May 2010: The final text of the Declaration, published in the second edition of the Moniteur Belge/Belgisch Staatsblad, is accessible by clicking here.

The European Commission has today made available a document containing the updated EU regulatory framework for electronic communications. This usefully includes unofficial consolidated texts of the EC directives, as follows:

Framework Directive: from page 41.

Authorisation Directive: from page 63.

Access and Interconnection Directive: from page 75.

Universal Service and Users' Rights Directive: from page 89.

E-Privacy Directive: from page 115.

The document also includes the consolidated Roaming Regulation, various spectrum-related legal instruments, the Recommendations and Guidelines issued by the European Commission, etc.

The full document (4.25 Mb) can be accessed by clicking here.

Today's Official Journal of the European Union contains the two EC Directives amending the regulatory framework for electronic communications, and the EC Regulation establishing BEREC.

The BEREC Regulation enters into force within 20 days, i.e. on 7 January 2010, but it is clear that the European Regulators Group will continue to operate in parallel for a considerable period of time. 

The Directives enter into force tomorrow (19 December 2009), with a deadline for transposition into the national law of the Member States on 25 May 2011.  

Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services. 

Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws.

Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office.

The European Commission has also adopted a Decision amending the Decisions establishing the Radio Spectrum Policy Group. 

Commission Decision 200/987/EU of 16 December 2009 amending Decision 2002/622/EC establishing a Radio Spectrum Policy Group.

The package published today also includes a European Commission "Declaration on Net Neutrality", which reads as follows: 

The Commission attaches high importance to preserving the open and neutral character of the Internet, taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities (1), alongside the strengthening of related transparency requirements (2) and the creation of safeguard powers for national regulatory authorities to prevent the degradation of services and the hindering or slowing down of traffic over public networks (3). The Commission will monitor closely the implementation of these provisions in the Member States, introducing a particular focus on how the ‘net freedoms’ of European citizens are being safeguarded in its annual Progress Report to the European Parliament and the Council. In the meantime, the Commission will monitor the impact of market and technological developments on ‘net freedoms’ reporting to the European Parliament and Council before the end of 2010 on whether additional guidance is required, and will invoke its existing competition law powers to deal with any anti-competitive practices that may emerge.

(1) Article 8(4)(g) Framework Directive.

(2) Articles 20(1)(b) and 21(3)(c) and (d) of the Universal Service Directive. 

(3) Article 22(3) of the Universal Service Directive.

For a discussion of these matters, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . 

Late this afternoon, the European Court of Justice published it's Judgment in the case opposing the European Commission and Germany.

The case relates to the 'emerging markets' clause which was introduced as § 9a (Regulierung neuer Märkte) in the German Telecommunications Act in February 2007.

The key paragraph 108 of the Judgment is as follows:

It follows from all of the foregoing considerations that, by adopting Paragraph 9a of the TKG, the Federal Republic of Germany has failed to fulfil its obligations under Article 8(4) of the Access Directive, Articles 6 to 8(1) and (2), 15(3) and 16 of the Framework Directive and Article 17(2) of the Universal Service Directive. 

The full text of the Judgment can be accessed by clicking here.

For background on this case, please search on Germany on this website. We covered the details extensively in 2006/7.

This morning, the European Parliament voted the Telecoms Package (in third and final reading): 510 votes in favour, 40 against, 21 abstentions.

This follows the adoption of various elements of the package by Council by decisions taken on 26 Oct 2009 and 20 Nov 2009. 

At the press conference held in the European Parliament, satisfaction was expressed by the Rapporteurs and by the Chairman of the Conciliation Committee, as well as by Commissioner Viviane Reding. 

  The revised EU directives will be officially signed by the President of the European Parliament and the Presidency of Council on 25 Nov 2009, followed by publication in the Official Journal in the next few weeks (expected on 18 Dec 2009), with a deadline for transposition in national law of the Member States 18 months after publication (June 2011).    

Outstanding issues, and outright disagreement, have already emerged, as follows:

Catherine Trautmann stated very clearly that Net Neutrality would come back on the agenda, and would be debated in Parliament in 2010. She added that 'we need to see clearly on this topic, on the basis of 'monitoring' conducted by the European Commission' and that 'it is not appropriate to simply take over elements from across the Atlantic'.

Groups of Member States made two declarations: 

• European Commission powers over regulatory obligations ('remedies'): Austria, Estonia, Finland, Germany, Greece, Ireland, Italy, Latvia, Malta, Poland, Portugal, Slovakia, Spain and United Kingdom issued a joint statement, declaring that the scope of the European Commission’s decision-making powers under Article 19 of the Framework Directive by reference to Articles 15 and 16 of the Framework Directive is limited to matters concerning market definition, assessment of significant market power and the effect of market analysis on whether obligations should be imposed or not on undertakings but does not extend to the choice and design of remedies under Articles 8 of the Access Directive or Article 17 of the Universal Service Directive.

• Privacy (consent for cookies): Austria, Belgium, Estonia, Finland, Germany, Ireland, Latvia, Malta, Slovakia, Spain and United Kingdom issued a joint statement (not further discussed here). 

At the press conference held over lunch today, Commissioner Reding stated forcefully that declarations by Member States do not have legally binding value, and that the European Commission will very seriously apply Art 19 if decisions by National Regulatory Authorities (including on remedies) could endanger the internal market. On privacy, she made a clear distinction between spyware/malware and 'technical cookies'.