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.

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