Update 22 Nov 2009: European Parliament - presentation of Trautmann Report on 23 Nov 2009 and vote is scheduled for 24 Nov 2009.

This addresses a key hurdle to the completion of the Telecoms Package, although the revised Framework Directive still has to be voted (for the third time) in the European Parliament (in the session of 23-26 Nov 2009) and still has to be adopted by the Council. Expectations are that these two steps will occur within the next 6 weeks. 

A European Commission Press release, containing the new agreed wording for Article 1(3)a of the Framework Directive (Annex I of the press release), further elements, background material, etc. can be accessed by clicking here.

The agreed wording for Article 1(3)a is as follows:

“Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial review and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed.” 

The Belgian regulatory authority BIPT has issued (at the request of the Minister) a consultation document requesting market participants to provide input and impact assessments on proposals being debated in the Federal Chamber of Representatives, putting forward significant modifications to the Law on Electronic Communications.

The purpose of the proposals (and proposed amendments thereto) is to facilitate the process for users switching from one Internet Service Provider (ISP) – and presumably also from one e-mail provider/web hosting provider – to another.

The bill (filed by representatives Roel Deseyn and Jef Van den Bergh on 26 May 2009), entitled 'modification of the Law with regard to the changing of operator', is very short (3 articles fitting on a single – bilingual – page), indicates that users are inhibited from switching from one ISP to another by the fear of losing their e-mail address and hosted web pages, and seeks to facilitate switching by requiring (if the user requests it) free of charge temporary e-mail forwarding and URL redirection for a period of 6 months after contract termination. It also requires the service provider to inform users of this possibility upon contract termination.

On 8 July 2009, amendments were filed, including by one of the original authors of the bill (Roel Deseyn), which entail:

• Introduction of definitions of “number”, “e-mail address” and “e-mail” in the Law (whereby an e-mail address becomes a subset of a “number”, and whereby the concept of “e-mail” includes text, speech, sound and image messaging, with a user-server interaction), as well as an amended definition of URL compared to the original bill, and a definition of “domain name”.

• Introduction of an e-mail and URL 'capture' mechanism, whereby, if a user decides to terminate a contract with an ISP or e-mail provider, the user in question should, during a period of 6 months after termination or de-activation, be able to access incoming mail on his old e-mail address (using webmail). Simultaneously, the ISP or Host must send out a message to incoming contact attempts addressing the defunct addresses with a message that the e-mail address or URL is no longer in use. Upon explicit request of the user the message may also contain a pointer to a new e-mail address or URL. The Minister (upon advice of the BIPT) is given responsibilities with regard to detailed implementation of the proposed mechanisms.

Other amendments, also filed on 8 July 2009, by another representative (David Geerts), go much further, as they call for:

• Imposing an obligation on ISPs to provide “the facility of e-mail portability” (with the BIPT put in charge of defining rules in this context, a cost-accounting methodology, and “a method for sharing the costs between the parties concerned”).

• The BIPT to define rules to be adhered to by operators upon termination of an Internet subscription, such that the end-users do not lose information addressed to them upon termination of a subscription with an operator.

The BIPT invites interested parties to express their views on: financial implication for market participants; operational impact for users and market participants; implementation timeframe; legal aspects in terms of privacy, branding, contracts, etc. and calls for alternative proposals or other relevant remarks.

T-REGS Note: It will be seen that the proposals have major potential implications, in terms of what constitutes an electronic communications service, what constitutes a “number” (although Article 1,3° of the Royal Decree on Numbering is identical to what is being proposed to be included in the Law), (re)definition of activities on the Internet (potentially going beyond e-mail and web hosting), obligations on market participants, etc. For example, the proposed definition of electronic mail comprises all text, speech, sound or image transferred through an electronic communications network which can be saved in the terminal equipment of the receiver until it is fetched by the end-user of the internet service.

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

Comments are invited by 31 August, 15:00 CET.

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 .

Update 27 July 2009: Conciliation meetings (between the Council of Ministers and the newly elected European Parliament) will be held in the first week of October 2009 with a view to reaching a new political agreement on the legal framework. The question as to whether conciliation will be limited to the Amendment 138/46 issue alone, the amendments to the Framework Directive, or whether the entire package will be re-opened for discussion remains unresolved.

In the meantime, the Council of Ministers today adopted the final text of the updated "GSM Directive". The updated Directive will be signed by the Presidents of the European Parliament and the Council of Ministers in September and will then be published in the EU's Official Journal in October 2009. At the same time, the European Commission will adopt a Decision, which will enter into force on the same day as the updated Directive, setting out the technical measures allowing for the co-existence of GSM and UMTS systems in 900 MHz spectrum in line with the Directive.

Update 26 May 2009: The Council of Ministers will discuss the situation informally on 11 June 2009 (but it is not a formal agenda point, given that the European Parliament has not yet transmitted the texts it has voted).  

The European Parliament plenary voted today on the revision of the EU directives on electronic communications, and adopted the text that was agreed in the Coreper I last week, but in addition the vote resulted in the reintroduction of Amendment 138/46 which the Council of Ministers had opposed. This amendment reads as follows:

applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent. 

La Quadrature du Net states that this is the result of "remarkable citizen mobilization".

The implications of this development are -as yet- uncertain. The Czech Presidency and the Council of Ministers could conceivably decide to agree with the European Parliament's amendment, following conciliation (quite possibly resulting in delay) or the entire package could be scuppered.

Following today's vote, the European Commission issued a memo, indicating what the Commission sees as the 12 key points of the package, and including a statement by Commissioner Viviane Reding, as follows: "Now the ball is in the court of the Council of Telecoms Ministers to decide whether or not to accept this package of reforms. There was one amendment voted by the Parliament today that was not included in the initial deal agreed between the three EU institutions. This amendment is an important restatement of the fundamental rights of EU citizens. For many, it is of very high symbolic and political value. I call on the Council of Ministers to assess the situation very carefully, also in the light of the importance of the telecoms reform for the sector and for the recovery of our European economy. The Telecoms Council on 12 June should be used for a political discussion on whether agreement on the package is still possible or whether the discussion will have to start again with the new European Parliament in autumn."

The European Parliament subsequently issued a press release, in which it indicates the following: "MEPs amend a political agreement reached with the Council [...] Therefore, the whole "telecom package" is likely to be subject to conciliation in Parliament's next legislative term after the European elections [...] Parliament and Council do agree on the citizens' right directive and the establishment of a new European body of telecom regulators called BEREC but amend the compromise reached with Council on the framework directive. Since all three proposals are interlinked, it is likely that the whole package will go to conciliation."

The provisional version of the text of the revision of the EU directives, as adopted in second reading by the European Parliament, can be accessed by clicking here.

Update 5 May 2009: The European Parliament has today published background material, which can be accessed by clicking here and Malcolm Harbour (MEP) has published an interview.

The next steps are formal debate (5 May 2009) and voting (6 May 2009) in the European Parliament plenary, and adoption by the Council of Ministers on 12 June 2009, followed by formal publication of the Directives in the Official Journal.

The Czech Presidency's press release can be accessed by clicking here.

Catherine Trautmann (MEP)'s press release (in French) can be accessed by clicking here. 

One consolidated texts are available, we will post them on this website. In the meantime, the pages showing the state of advancement of the Parliamentary process (not yet reflecting the agreement reached on 29 April 2009) can be accessed via these links:

Framework, authorisation and access directives

Universal service and users' rights directive + e-privacy directive + data retention

Creation of the Body of European Regulators for Electronic Communications (BEREC)

Please do not hesitate to contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it   for a discussion.

Update 16 Jan 2009: The deadline for responding to the OPTA consultation on wholesale FttH-unbundling fees is now 13 February 2009. The letter specifing this, and the link to the consultation document (in Dutch language only) are accessible by clicking here.

Update 24 Dec 2008: On 19 Dec 2008, the Dutch competition authority NMa approved the KPN-Reggefiber joint-venture (named Reggefiber Group B.V.), on condition that it practices maximum wholesale fees for FttH unbundling in the bracket of €14,5-€17,5/month (depending on geography) with an annual uplift to reflect inflation. T-REGS note: This wholesale rental fee is for two dark fibres to each customer.

Also on 19 Dec 2008, OPTA issued its market analysis decision for Market 4 (among a set of market analysis decisions it issued), issued final Policy Rules on FttH unbundling (the main difference compared to the draft is a clarification that these rules are explicitly only for Fibre to the Home, not for Fibre to the Office), and OPTA issued a further consultation document containing a draft decision on wholesale FttH-unbundling fees for the period 2009-2011. The deadline for responding to this consultation is 13 January 2009. 

OPTA puts forward regulatory principles, as well as tangible one-off and monthly maximum fees (e.g. monthly rental €14.5-€17.5 per FttH fibre pair), for the Optical Distribution Frame access (ODF-access) offer and related facilities (co-location, backhaul) of the envisaged Reggefiber-KPN joint-venture (JV).

This JV, in which KPN aims to have a 41% stake, is subject to clearance by the competition authority NMa, and OPTA has formally proposed that the JV would be included in the KPN designation as the operator with Significant Market Power (SMP) on Market 4 (wholesale (physical) network access at a fixed location), dated 5 Nov 2008. KPN and Reggefiber have opposed OPTA’s proposed SMP finding, although they publicly committed to providing voluntary fibre access.

Today’s OPTA consultation document makes numerous references to the European Commission's draft Recommendation on regulated access to Next Generation Access networks (and to the ERG response to it), and is presented as the first practical implementation of the principles put forward in these documents.

OPTA positions its proposed regulatory intervention in the context of a ‘trade-off’ between short-term promotion of competition (through access obligations on dominant operators) and the encouragement of (efficient) investment. Regulatory certainty is identified as an important contributor to a favourable environment for investment and innovation, for the benefit of market participants and consumers.

Key principles (this T-REGS news item is merely a selection/summary) put forward by OPTA are as follows:

• 5 rules to prevent discrimination between the network owner and its affiliates on the one hand, and third parties on the other hand, notably to prevent risks of margin-squeeze. Volume discounts, however, are proposed to be permitted. OPTA proposes to validate (page 41) a discount up to 20% on the monthly rental fee for fibre pairs, where 26.000+ fibre pairs per FttH (P2P) city  concentration point (the hierarchical level above the actual ODF-access locations) are taken up (the discount table shows discounts ranging from taking-up 2000 fibre pairs upwards at city concentration point level). Updates 26 and 27 Nov 2008: Following two questions put by T-REGS to it, OPTA has confirmed that: (i) the volume discounts in the table are to be awarded to all unbundled fibre takers per city concentration point (hierarchical level above the actual ODF-access locations), and (ii) based on the common volume achieved i.e. not on a taker-by-taker basis.

• Geographic differentiation, in particular to reflect demonstrable underlying construction costs, would be permissible.

• A ‘wholesale tariff ceiling’, T0, would be defined, on the basis of a cost model, for each element of unbundled fibre access. This ceiling would be indexed every year based on the consumer price index (CPI), within ‘regulation periods’ of 3 years (T-REGS Note: max. 3 years for market reviews as required by the Dutch transposition of the EC framework for electronic communications).

• T0 is proposed to be defined on the basis of the business model of the investor (not an OPTA cost model) and the investors’ internal rate of return (IRR) - in this case the Reggefiber-KPN JV which is proposed to be found as having SMP and is therefore proposed to be regulated -, not taking into account the risk of future regulation.

• OPTA introduces a notion of ‘all-risk WACC’ (weighted average cost of capital) for the 3-yearly review. The ‘all-risk WACC’ would include uplifts on the WACC that is applicable to the legacy copper network to reflect: (i) an uplift to cover fibre investment risk (risk on demand/take-up of fibre access), and (ii) an uplift to cover asymmetric risk (risk of future regulation for the fibre investor), to promote investment.

• The ‘all-risk WACC’ would be re-assessed at the start of every 3-year regulation period, and compared with the actual IRR achieved by the investor (based on the original business model, values of which can be amended based on achievements and expectations going forward).

• If the IRR (at the start of a 3-year regulation period) approaches the ‘all-risk WACC’, the investor would be allowed to choose to be price-regulated (capped) on wholesale fibre unbundling going forward, to offer greater volume discounts for wholesale fibre unbundling, or to extend the network to areas that are less profitable to avoid being regulated (goal: stimulate deployment). In case the further deployment option is not chosen, the cap would be reduced for the next 3-year period, but again allowing annual CPI-related increases.

• One-off connection fees should not dissuade take-up. OPTA proposes to validate (page 39), a one-off connection fee per customer of maximum €100.

As is indicated above, OPTA proposes to rely, to define T0, on the business model provided to it by the proposed Reggefiber-KPN JV – which was given insight in a draft of OPTA’s proposed policy rules. The JV has formulated a proposal, key elements of which are as follows:

• One-off FttH customer connection fee: €100; one-off telco-telco migration fee: €125.

• One-off Area-PoP connection fee (concentration point aggregating tens of thousands of lines): €3000.

• Monthly rental backhaul Area PoP to City PoP (2x28 fibres redundant): €600.

• Monthly co-location fee (6 footprints) in Area PoP: €500.

• Monthly fibre pair rental fee: €12 to €15 depending on capex profile. Other (lower and higher) capex profiles can be defined in the future. OPTA proposes to cap the fees at €14.5 (for the €12 offer) to €17.5 (for the €15 offer).

Interested parties are invited to comment on OPTA’s proposed policy rules until 8 December 2008, followed by further consultation on the draft Market 4 analysis, incorporating the policy rules on tariff regulation for unbundled fibre access, for a period of 6 weeks running from 19 Dec 2008.

The full text of the OPTA consultation document (in Dutch language) can be accessed by clicking here. On 1 Dec 2008, OPTA made available an English translation, which can be accessed by clicking here.

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

Update 25 Nov 2008: KPN has made a press statement indicating that it has received what it terms 'sufficient clarity' (from OPTA and NMa) to continue rolling-out FttH as per its existing plans (its own selective FttH roll-out and its commercial agreement to take unbundled FttH from Reggefiber), with an evaluation following mid-2009, i.e. contrary to press and blog reports, no decision has been made on massive roll-out and the JV is still pending approval by the NMa.

Last week, the French Parliament and the French regulatory authority ARCEP took major steps in defining a regulatory framework that aims at achieving widespread deployment of Fibre to the Home (FttH).

Specifically, the following developments occurred:

Key noteworthy points (small selection of a wide range of decisions) are as follows:

Fibre access obligation (but... how symmetric, and how long?)

The Law (Art. 109 VI) imposes an obligation, applicable to all persons or entities (including network operators) that have established a fibre-optic line that enables the provision of very high-bandwidth electronic communications to an end-user on a private property, to meet reasonable requests for access to that fibre-optic line, emanating from operators wishing to provide electronic communications services to that end-user.

The wording of the obligation (which is remarkable in its own right given that it does not rely on any market definition or finding of single or joint dominance) is of particular interest, because: (i) it does not specify the physical location of the access point, but it indicates that the access point is to be situated outside the limits of the private property (unless ARCEP approves the access point being inside) and must enable the effective connection of third-party operators, under conditions that are reasonable from an economic, technical and accessibility perspective, (ii) the access point could be different depending on the identity of the provider, and (iii) nothing is stated about fees that will be applied for these fibre access connections (but it is clear that fees will apply).

The Law (Art. 109 VI) also modifies existing legislation to ensure that disagreements about conditions for such fibre access are subject to ARCEP's dispute-resolution powers under the existing Art. L. 36-8 and enhances the existing Art. L. 36-6 in a manner which enables ARCEP to make an ex-ante determination of the technical and financial conditions of the new symmetric fibre access obligation.

T-REGS Note: The physical location of the access point is subject to major disagreements between operators (in part due to different strategies and network architectures (e.g. P2P vs GPON) but more substantially due to the economics of FttH roll-out). It seems clear that this debate will continue in the next several months, and that the offers of providers (in terms of location and in terms of wholesale fees) will differ. It is widely expected that ARCEP will have to make an ex-ante determination of the technical and financial conditions in application of its new powers. In this regard, it is also important to note that ARCEP's Market 4 decision of 25 July 2008 (page 76) indicates that it will consider extending fibre access obligations if the regulatory measures are insufficient to guarantee competition; the European Commission indicated in its letter dated 18 July 2008 (page 11) (which predates the adoption of the Law) that it encourages ARCEP to consider imposing other remedies in relation to market 4, in case the adopted law would not be sufficient to ensure effective competition in combination with duct access.

Furthermore, the Law (Art. 110) modifies existing legislation to emphasise, in a technology-neutral manner, that operators designated as having significant market power on the local sub-loop are required to make available an access offer for this segment of the network, at reasonable tariffs. This technical and tariff offer must cover all elements to ensure that subscribers can benefit from high and very high speed services.

T-REGS Note: Establishing a market definition by law (the local sub-loop is not defined as a separate market in the European Commission's Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation) and predetermining a specific remedy by law as opposed to by market analysis is remarkable. However, the Parliamentary debates indicate that this stipulation does not aim to achieve sub-loop unbundling in the manner in which it is generally understood in Europe (e.g. using VDSL2 on metallic sub-loops or FttH on fibre sub-loops) but is rather aimed at enabling the shortening of very long metallic loops in remote areas, particularly by direct investments of local authorities wishing to stimulate viable xDSL over the legacy metallic loops. Fact is, however, that the text of the law does not specify the intention or the technology, and that the text of the law explicitly mentions 'very high bandwidth'. It would not be surprising if, in the future (ARCEP's M4 decision of 25 July 2008 continues to mandate metallic sub-loop unbundling for a period of 3 years), interpretations of this legislative stipulation could evolve...

Potential fibre access quasi-monopoly?

The Law (Art. 109 II) prevents landlords from refusing the installation and maintenance of fibre-optic lines for very high-bandwidth electronic communications, unless they invoke serious and legitimate objections. The Law then goes on to specify that a serious and legitimate reason is the pre-existence of fibre-optic lines that enable meeting the specific needs of the requesting party. In such circumstances, the landlord can demand that the connections are achieved by using the existing lines. Further stipulations address circumstances in which a decision was already taken by the landlord, a maximum of six months earlier, to proceed to the installation of fibre-optic lines.

T-REGS Note: This stipulation puts the decision as to whether there is a single or there are multiple access infrastructure options on private property firmly in the hands of landlords, in conjunction with the decisions of entities (including network operators) that install the infrastructure on private property (e.g. decisions on the number of fibre strands, the fibre specifications, etc.). The addition of the word 'specific' (underlined above, which occurred upon review by the Senate and the discussion of this matter is reflected in the Senate debate) indicates that landlords must take account of requirements for Service Level Agreements (SLAs) for business-grade connections, for example in business-only or mixed residential/business premises. 

The same article stipulates that, when the fibre-optic lines (on private property) are installed by an operator of a public electronic communications network, the costs for this installation will be borne by this operator.

Civil infrastructure access obligation on France Telecom

ARCEP's decision on Market 4 (wholesale (physical) network infrastructure access at a fixed location) is precedent-setting, in that it defines the relevant market as not only including metallic loops/sub-loops (although not Cable-TV as it is considered unsuitable for unbundling), and also dark fibre (in the access network), and, this is where the major innovation resides, civil works infrastructure (in the access network). The market definition also explicitly comprises not only the infrastructure constituting the wired local access network of electronic communications network operators, but also the civil infrastructure and fibre infrastructure of local authorities within the perimeter of the local wired access network.

ARCEP established that this market is national in scope (metropolitan France and overseas territories), and that France Telecom (FT) has significant market power on the wholesale market for access to these infrastructures.

The existing obligations on FT for metallic local loop/sub-loop unbundling are broadly maintained and the existing FT fibre backhaul offer in the context of metallic loop unbundling is confirmed and hence becomes the subject of a firm regulatory obligation. Fibre unbundling is not mandated in the ARCEP Market 4 decision.

Art. 11 of the ARCEP decision introduces a new civil infrastructure access obligation on FT, which covers the infrastructure relevant to the local access network, including ducts and chambers used to connect both residential and business customers, a process for « de-saturation » of the local access infrastructure (i.e. to ensure that construction occurs where there are capacity constraints), and procedures for access to information and updating of such information relating to civil infrastructure access. Art 12, 13, 14. of the decision add that this access must be provided on non-discriminatory conditions compared to FT's self-supply (including procedures and internal transfer pricing), that a reference offer for local infrastructure access must be published (the conditions of which are detailed in Annex 1.B), and that FT is subject to a cost-orientation obligation (including a specification that the fees must reflect the space occupied or immobilised by such access, which can be subject to a more detailed ARCEP decision subsequently). Further obligations (including accounting separation etc.) apply.

Wholesale broadband access: cable excluded after all, no fibre bitstream 

ARCEP's decision on Market 5 (wholesale broadband access) includes wholesale bitstream provided over metallic twisted-pair loops/sub-loops, and over fibre access, but following comments contained in the European Commission's letter dated 18 July 2008, ARCEP excluded wholesale bitstream provided over Cable-TV (whereas previous ARCEP drafts, including the draft with which the French Conseil de la Concurrence agreed, had included cable in the relevant market). Powerline, WiFi and WiMax are also excluded from the market definition.

ARCEP established that this market is national in scope (metropolitan France and overseas territories), and that France Telecom (FT) has significant market power on the market for wholesale broadband access.

The existing obligations on FT for wholesale broadband access at regional level over metallic local loop/sub-loops are broadly maintained and extended to include Ethernet bitstream where FT has installed DSLAMs capable of Ethernet (although an explicit decision is made not to mandate multicast over Ethernet).

Bitstream over fibre is not mandated, on the grounds (expressed solely on page 63 of the decision), that this would neither be necessary nor proportionate, notably given that fibre in the access network is not inherited from the monopoly period, and that the Market 4 decision imposes civil infrastructure access (access to the infrastructure inherited from the monopoly period) and that the Law puts forward « fibre mutualisation »(T-REGS note: the Law does not in fact use the term mutualisation)), i.e. a symmetric obligation on all providers to grant access (the geographic extent of which remains undefined). ARCEP does add (also on page 63) that, in case the regulatory approach it has selected would not suffice to achieve effective competition, the approach could be amended, and as the case may be, involving additional obligations on France Telecom.

The full text of the documents referred to in this T-REGS news item can be accessed (in French only) via the links below:

Loi de modernisation de l'économie, as adopted (update - published on 5 August 2005)

ARCEP Decision 08-835: Market 4

ARCEP Decision 08-836: Market 5

European Commission comments letter on ARCEP notification of Markets 4 and 5 (in English).

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