Update 5 August 2008: The 'Loi de modernisation de l'économie' was published in today's Journal Officiel.

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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).

This includes, among others, obligations on all operators to meet reasonable requests for access to in-building fibre (at an access point to be defined), an ambivalent position on fibre unbundling beyond the private property portion, a formalised civil infrastructure access obligation on France Telecom, and a decision not to mandate wholesale broadband access over fibre.

• 23 July 2008: Adoption by the Senate (after the National Assembly earlier) of the 'Loi de modernisation de l'économie', a wide-ranging law, articles 109 to 120 of which address the telecommunications sector.
• 25 July 2008: Adoption by ARCEP (following the receipt of a European Commission comments letter dated 18 July 2008) of the analyses of Market 4 and Market 5 of the second edition of the European Commission's Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation.

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Update 18 Sep 2008: The Appeals Court (Audiencia Nacional) has provisionally suspended the (revised) CMT measures relating to FttH. A hearing is scheduled for 22 Sep 2008, after which the Appeals Court may issue a ruling.

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Update 31 July 2008: The CMT has revised its resolution on appeal, and has removed the obligation on Telefónica to provide a 'provisional virtual FttH wholesale service' (FttH bitstream) on the grounds that Telefónica's offer for civil infrastructure access (the primary obligation) is expected to be operational on 16 Sep 2008, thereby removing the need to adopt provisional FttH bitstream remedies (the secondary obligation).

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Update 16 May 2008: The full text of the CMT resolution is now available and is linked below.

T-REGS note: Two CMT board members expressed formal reasoned dissenting opinions on the adoption of these provisional regulatory measures. 

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The Spanish regulatory authority CMT announced this evening that it has taken provisional regulatory measures in the context of Next Generation Access (NGA) network developments, pending the subsequent adoption of its Market Analysis decisions on Wholesale (physical) network infrastructure access (including shared or fully unbundled access) at a fixed location (Market 4) and Wholesale Broadband Access (Market 5).

Only a press release is publicly available at this stage. In this press release, the CMT indicates that the following:

• Upon reasonable request from alternative operators, Telefónica will be required to provide duct access, under non-discriminatory and cost-oriented conditions.

 

• Upon reasonable request from alternative operators, Telefónica will be required to provide a map of its NGA nodes as planned until 2010, and various related information (including civil works plans, planned fibre coverage, etc.) 1 year in advance of executing NGA plans.

 

• Telefónica will also have to provide a 'provisional virtual FttH wholesale service' to unbundling operators committed to invest in NGA, for which an offer will have to be prepared within 4 months, which will be subject to the principle of equivalence. The focus of this provisional measure is to enable unbundling operators to match Telefónica's IPTV offerings in particular.

 

The CMT announcement is accessible by clicking here (in Spanish only).

The full text of the CMT resolution is accessible by clicking here (in Spanish only).

 

For reference, recent documents on Next Generation Access were also issued by the French and Dutch regulatory authorities, as follows:

 

• France: Following completion of the national public consultation, ARCEP transmitted its provisional analyses for Markets 4 and 5 to the Competition Council on 24 April 2008 (nation-wide markets are proposed to be defined, France Télécom is proposed to be declared as having Significant Market Power on both markets, differentiated regulatory obligations are put forward). The full text of the provisional analysis is accessible by clicking here (in French only).

 

• Netherlands: OPTA has issued questionnaires to market participants on 4 April 2008, which are designed to gather input for its forthcoming analyses of Markets 4 and 5, giving provisional indications of OPTA's thinking on market definition, SMP assessment, and potential regulatory obligations, specifically in the context of KPN's All-IP roll-out. These questionnaires can be accessed by clicking here (M4) and here (M5)  (in Dutch only).

 

For a discussion of these developments, 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 28 Dec 2007: The revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation (2007/879/EC) of 17 December 2007 was formally published in today's Official Journal. The published text can be accessed by clicking here.

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Update 20 Dec 2007: At the Communications Committee meeting of 19 Dec 2007, following a specific question from a Member State delegate, the European Commission confirmed that the revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation was formally notified to the Member States and is considered to be in effect as of 17 Dec 2007.

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Update 30 Nov 2007: The officially adopted text of the revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation and the associated revised Explanatory Note, as well as the legislative proposals, the proposed Regulation setting up the European Electronic Communications Market Authority, and the impact assessment documents, have now all been published, and can be accessed by clicking through from here. 

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Today, the European Commission adopted legislative proposals for a revision of key principles in the Directives governing the telecommunications sector in the European Union.

The European Commission also put forward as a draft Regulation setting up an European Electronic Communications Market Authority.

These proposals must now be scrutinised by the European Parliament and Council of Ministers, and, if a common position can be reached between these institutions, be adopted by both institutions. 

Given the controversial nature of several of the European Commission’s proposals, it cannot be assured that amending Directives and the Regulation will be adopted before the end of the term of the current European Parliament. The earliest possible adoption date (assuming that a common position is reached during the term of the current Parliament) is likely to be late in 2008, upon which Member States will have to transpose the amending Directives into national law, and give practical effect to the revised principles through secondary regulations and decisions by National Regulatory Authorities. 

Clearly, the revised regulatory framework will only come into effect in the next decade in most Member States. As regards the proposed new ‘remedy of last resort’, the potential to mandate/accept ‘Functional Separation’ of vertically integrated dominant operators, if it is included in the common position to be adopted by Council and Parliament, the timeframe runs even further, and it is reasonable to expect this to be an obligation that could be implemented, and produce effects, rather in the 2012-2015 timeframe, unless National Regulatory Authorities consider that they have sufficient powers under the existing Directives to move faster. T-REGS Note: Anticipation is in fact being actively considered in Italy, Sweden and Poland. However, if National Regulatory Authorities await being granted the new powers, which is likely to be the more prevalent approach, and even if the new powers to mandate/accept Functional Separation are correctly transposed into national law, this remedy would then have to be selected by a National Regulatory Authority after conducting the requisite market analyses, and assuming that these analyses are not vetoed by the European Commission, be followed by a period needed to actually implement the obligation.

Given the timeframe outlined above, it is worthwhile to highlight that the European Commission also adopted the revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation, which, once published (which is expected in the next few days or weeks) will immediately be effective, and will undoubtedly immediately strongly influence the day-to-day work of the National Regulatory Authorities of most Member States.

Aside from the removal of a number of markets (retail telephone calls markets, the retail leased lines market, wholesale transit and trunk segment markets, the wholesale mobile access and call origination market, and the wholesale mobile international roaming and wholesale broadcast transmission markets), the major modifications concern the wholesale markets relating to fixed broadband access.

The European Commission has decided to re-define the wholesale unbundled access and wholesale broadband access markets in a technology-neutral manner. In particular, the references to ‘for the provision of broadband and voice services’ have been removed from both market definitions, and the reference to ‘metallic’ has been removed from the unbundled access market, clearly indicating that fibre infrastructure is included in the relevant market.

In addition, the revised explanatory memorandum makes clear that the European Commission sees a potential need to regulate other physical infrastructure, by having included the commentary that “remedies such as duct sharing, access to dark fibre, mandated backhaul from the street cabinet, and new forms of bitstream access, could be considered where these are appropriate”. The Commission added that “where no alternative infrastructure is likely to become available to allow replication, then access to either ducts or alternative network elements must be considered. Access to ducts could be an important part of any remedy imposed to address problems associated with physical network access”.

The full list of relevant markets listed as being subject to ex-ante regulation in the revised Recommendation is reproduced below. National Regulatory Authorities retain the right to define markets differently, or to define additional markets, subject to a veto power of the European Commission. Where existing obligations were imposed on markets listed in the previous Recommendation, or other markets defined and not vetoed by the European Commission, National Regulatory Authorities will have to conduct a new analysis before amending or withdrawing existing regulatory obligations.

Retail level

1. Access to the public telephone network at a fixed location for residential and non-residential customers.

Wholesale level

2. Call origination on the public telephone network provided at a fixed location.

For the purposes of this Recommendation, call origination is taken to include call conveyance, delineated in such a way as to be consistent, in a national context, with the delineated boundaries for the market for call transit and for call termination on the public telephone network provided at a fixed location.

3. Call termination on individual public telephone networks provided at a fixed location.

For the purposes of this Recommendation, call termination is taken to include call conveyance, delineated in such a way as to be consistent, in a national context, with the delineated boundaries for the market for call origination and the market for call transit on the public telephone network provided at a fixed location.

4 Wholesale (physical) network infrastructure access (including shared or fully unbundled access) at a fixed location.

5. Wholesale broadband access.

This market comprises non-physical or virtual network access including ‘bitstream’ access at a fixed location. This market is situated downstream from the physical access covered by market 4 listed above, in that wholesale broadband access can be constructed using this input combined with other elements.

6. Wholesale terminating segments of leased lines, irrespective of the technology used to provide leased or dedicated capacity.

7. Voice call termination on individual mobile networks.

The French incumbent telecommunications operator, France Telecom, has today issued a press release in which it confirms that it will prepare a voluntary commercial offer for wholesale access to its ducts by the end of 2007.

Details have not been published, but it is clear that:

a) France Telecom has made a specific proposal to the regulatory authority ARCEP, in the context of ARCEP's public consultation on very high bandwidth networks, in particular FttH.

b) France Telecom envisages either a reciprocal commitment from other operators, or, more likely, a form of symmetric regulation that would mandate non-discriminatory duct access on all owners of infrastructure that is suitable for the deployment of optical fibre.

T-REGS Notes:

France Telecom already offers, for more than a decade, duct access on a case-by-case basis. Access has been granted, for example, in circumstances where municipalities refused to grant rights-of-way to new operators, and the municipality instructed these operators and France Telecom to come to an agreement for the utilisation of France Telecom ducts.

It remains to be seen to which extent a legal/regulatory basis can be identified or established to impose wide-ranging duct access on telecommunications operators that do not have significant market power on a relevant market, and on entities that are not providers of electronic communications networks.

If today's announcement is to result in an effective offer, engineering rules will have to be developed, to enable large-scale sharing of ducts and associated manholes, handholes, cabinets, optical distribution frames, etc. and related procedures for installation and maintenance.

The full text of France Telecom's press release can be accessed by clicking on the links hereafter: French version ; English version.

Today, the International Telecommunications Union, specifically the Radiocommunication Assembly (RA-07), announced that consensus had been reached on the following:

• Inclusion of a 6^th terrestrial radio interface in a new revision of Recommendation ITU-R M.1457 (this is commonly known as the IMT-2000, or third generation, list of standards). The radio interface is identified as TDD WMAN, which is a specific subset of IEEE 802.16e, i.e. WiMAX.

 

T-REGS Note: We had raised this possibility on Slide 9 of this presentation in 2005, which at the time was met with scepticism.

 

• Addition of OFDMA transmission capability to certain existing IMT-2000 radio interfaces.

• Adoption of the term 'IMT-Advanced' as the name of the generation of radio technologies beyond IMT-2000. 

The RA-07 also established the guiding principles that underpin the process for specifying the radio interfaces for IMT-Advanced.

During 2008 and 2009, there will be an open call for candidates for IMT-Advanced to be submitted to the ITU, as well as the start of assessment activities of candidate technologies and systems.

According to the ITU, IMT-Advanced networks could be commercially deployed from 2011 onward. 

The revised Recommendation ITU-R M.1457 has not yet been published, but should become available on this page.

Update 27 July 2007: In accordance with the OPTA instruction of 13 July 2007, KPN has today published a notice (available in Dutch language only) addressed to other operators in the context of "All-IP".

 

This notice sets out key principles on the phasing out of MDF access, including:

 

• a number of locations where MDF access will -after all- remain available to enable alternative operators to maintain 50% coverage through MDF access beyond 2010.

 

• various financial contributions to costs that will be incurred by alternative operators.

 

The notice also contains a commitment by KPN to provide wholesale broadband access (consumer and business class), and "Adjusted WBA" wholesale tariffs "to enable alternative operators to continue their current business model", and various other commitments.

 

For further details, 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 .  

 

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The Dutch incumbent operator KPN and the Dutch regulatory authority OPTA have today issued updates on the Next Generation Access negotiations conducted between KPN and alternative operators.

 

KPN announed that it has signed MOUs (memorandum of understanding) with Tele2-Versatel, Orange and BBNed in the context of KPN’s “All-IP” Plan (which encompasses Next Generation Access and Next Generation Core components) on which we reported in detail in an earlier T-REGS news item.

 

Apart from dealing with the future of Main Distribution Frame (MDF) access, i.e. the phasing out of local loop unbundling for alternative operators, the MOUs contain principles for alternative access methods such as sub-loop unbundling and wholesale broadband access. The principles contained in the MOUs will be further elaborated upon in the coming months.

 

OPTA, in a letter published on its website today, describes the MOUs as: "[…] [an] agreement with each of the parties mentioned on the principles governing the conditions under which these parties are prepared to cooperate – in due time – in the phasing out of the MDF locations of KPN". T-REGS Note: This indicates that the phasing out of the KPN MDF locations will be subject to an agreed time schedule and that it is not imminent on a large scale.

 

OPTA also reveals that the MOUs are not final agreements and that the parties will discuss matters further, including in order to reach a final MDF migration agreement.

 

From a telecommunications regulatory perspective, the following points are of importance:

 

• The MOUs are not exclusive to the parties that have currently signed. OPTA has instructed KPN to inform its other MDF access customers of its offer at the latest by 27 July 2007, as a basis for discussion, to reach non-discriminatory solutions.

 

• OPTA will investigate to what extent these MOUs and subsequent offers/agreements influence the findings in the forthcoming 2nd round analyses of Markets 11 (local loop unbundling) and 12 (wholesale broadband access), and "if there is cause to leave out or ease obligations on KPN".

 

• OPTA will monitor the developments, including as regards the reaching of a comprehensive MDF migration agreement.

 

• OPTA has not yet communicated its assessment of the content of the MOUs, due to confidentiality reasons.

 

In line with what has been announced previously, OPTA will now include the fact that agreement in principle has been reached in formulating its forthcoming 2nd round analyses of Markets 11 and 12, and it expects to come forward with draft market analysis decisions (market definition, SMP assessment, and proposed remedies) before the end of 2007.

 

The full text of today’s KPN press release and OPTA’s letter (both in English) can be accessed by clicking on the links hereafter (KPN) and here (OPTA). 

Update 28 June 2007: The full text of the European Commission's 'comments letter' SG-Greffe (2007) D/203748 has now been released. It reveals that the European Commission's eCommunications Consultation Task Force asked BNetzA for clarifications, and that further comments, and even explicit requests, from the European Commission were not incorporated in the final measure adopted by BNetzA yesterday.

 

For example, the European Commission's letter states: 

BNetzA proposes to mandate access to ducts of DT which are situated between the MDF and the street cabinet of DT but exempts those ducts which do not go via the MDF. Although BNetzA has clarified that all street cabinets are connected to MDFs, this does not resolve the question of access to ducts connecting street cabinets with other street cabinets or with higher network elements. Therefore, the Commission requests BNetzA, in its final measure, to redefine the remedy in order to ensure access also to those ducts which bypass MDFs.

BNetzA indicates in its final measure that 'daisy chaining' ducts between street cabinets to reach the MDF is covered, but that access to other ducts cannot be imposed given that this would require making hypotheses on future network architecture. 

[...] the Commission invites BNetzA to assess whether it is proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive to redefine the proposed remedies in a way that depending on the costs of network roll-out relative to the potential absolute and per user revenue alternative operators could opt for accessing the unlit fibre also in circumstances where there is still free capacity in the duct.

As reported yesterday, BNetzA indicated that it does not consider this proportionate. 

 

The European Commission letter also contains answers given by BNetzA in response to requests for clarification, e.g. relating to street cabinet co-location. Unsurprisingly, the European Commission also asks BNetzA to re-assess whether wholesale broadband access (Market 12) remedies previously adopted cover delivery of VDSL-based bitstream at the Main Distribution Frame location.

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In a previous news item we provided a step-by-step overview of the national consultation documents issued by the German regulatory authority with regard to the 2^nd round analysis of Market 11.

BNetzA subsequently notified its draft market analysis and proposals to the European Commission. On 25 June 2007, the European Commission issued a 'comments letter'.

Today, i.e. only 2 days later (T-REGS Note: this is an EU-wide absolute record of NRA expedience), BNetzA adopted its Market 11 measures, i.e.:

• Market analysis document (confirming the market definition excluding end-to-end fibre loops, and confirming the SMP assessment)

• Decision imposing regulatory remedies

The differences between the original draft BNetzA market analysis and originally proposed remedies and today's decision (available in German only - the bullet points above are clickable links) are very limited, and reside mainly in the following paragraph, which is included in the section "Proposed additional remedies":

"Nachfrager im Rahmen der Verpflichtung zur Zugangsgewährung zum Teilnehmeranschluss am Kabelverzweiger zum Zwecke der dafür erforderlichen Kabelverzweigerkollokation auf konkrete Anfrage über die Möglichkeit des Zugangs zum Kabelkanal bzw. zu zwei unbeschalteten Glasfasern zwischen dem Haupverteiler und dem Kabelverzweiger zu informieren und offen zu legen, zu welchem Zeitpunkt sie den Kabelverzweiger zur Aufnahme von eigenen DSLAM ausbauen wird."

This amounts to obliging Deutsche Telekom (in addition to the obligations explained in our previous news item) to provide information to requesting parties (upon explicit request by these parties) about the possibility to access:

• the cable conduit (duct) between the cable distributor and the Main Distribution Frame, OR

• two unlit fibres between the cable distributor and the Main Distribution Frame

It is explicitly confirmed that access to two unlit fibres must only be granted in those cases that access to the cable conduit is impossible (for technical or capacity reasons). 

In the press release accompanying today's decision (currently only available in German - English language versions are usually made available the same or next day), BNetzA president Matthias Kurth rejects one of the key comments made by the European Commission with regard to selection of remedies (the Commission had suggested that access to dark fibre should be made available in parallel with access to ducts, and not conditional upon lack of availability/capacity at the level of ducts). Mr. Kurth declared that imposing dark fibre backhaul in its own right would not be proportionate. He also added a statement to the effect that "Deutsche Telekom has it in its own hands to fill their empty duct capacity in an efficient way and, in this way, to take care that competitors are offered free capacity for the installation of their own fibre. Without this obligation, Deutsche Telekom could fill up their available empty duct capacity completely and in such a way disable the competitors' right to access to the unbundled local loop at the cable distributor and make it impossible to build out a network to the said cable distributor."

Additionally Deutsche Telekom is required to divulge its rollout scheme for DSLAMs in cable distributors.

T-REGS Notes: Upon initial analysis, the text suggests that Deutsche Telekom does not have to disclose a complete Next Generation Access network rollout plan, but rather case-by-case establishment of DSLAMs in cable distributors. Also, the wording of the new paragraph suggests that cable distributor (incl. street cabinet) co-location may be mandatory for Deutsche Telekom in application of Obligation 1.1.3 of the remedies decision (if practicable).  We will seek to further elucidate these two points.  Requests filed by alternative operators for optical wavelength backhaul and for access to a line card in a Deutsche Telekom DSLAM located in a cable distributor were explicitly rejected by BNetzA in the memorandum accompanying the remedies decision.

For a discussion of these important developments, please contact 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 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 

Several new public presentations have been added to the T-REGS documents category.

 

• Next Generation Access - Analysis of Regulatory Approaches in EU Member States (ECTA NGA Workshop 26 June 2007).

• Next Generation Access - Prospects for the Roll-Out of New Technologies Across Europe (Ofcom NGA Seminar 27 March 2007).

We took this opportunity to also add older T-REGS presentations:

 

• Innovation and Disruption at the Intersection with Telecoms Regulation and Competition Law (IBA conference 22-23 May 2006).

• VoIP in Belgium - Situation and Perspectives (ISPA conference 20 April 2006)
  

 

The presentations (PDF Format) can be accessed by clicking on Documents at the top right of this website. Click on 'date' to reorder the list if needed.