The European Commission’s eCommunications Consultation Task Force (Article 7 Task Force) has today published two letters relating to notifications made by the regulatory authority in the United Kindom.
Once again, these letters are distinctly predecent-setting in more than one respect.
Document SG-Greffe (2004) D/200489 concerns Market 16 (voice call termination on individual mobile networks), although it is entitled: “wholesale mobile voice call termination”.
The letter from the Art. 7 Task Force is precedent-setting in particular in the following respects.
The Commission expresses disagreement with Ofcom’s proposal (and associated reasoning) to impose differential obligations on 2G and 3G mobile operators (and in fact for 2G and 3G termination for converged operators) based upon the technology used, and notably states the following:
“The Commission would like to remind Ofcom that although 3G retail services might constitute a newly emerging market, which should not be subjected to inappropriate obligations, termination of voice calls on 3G networks is not as such to be considered as a novel service or a newly emerging market.”
This is the second time that the Art. 7 Task Force emphasises the principle of technological neutrality, now augmented by a strong statement on the interpretation of what does or does not constitute an emerging market.
However, the Art. 7 Task Force also opens a door to differential obligations based upon the market position of operators, by stating the following:
“Without questioning Oftel’s conclusion, the Commission would like to point out that Ofcom may want to consider strengthening its SMP analysis with regard to Inquam by taking into account for example Inquam’s pricing behaviour in the past. This is particularly relevant since Inquam’s subscribers are predominantly small- and medium-sized enterprises, which are businesses sensitive to the cost of customers calling them, which, in theory, could limit Inquam’s freedom to set termination charges at an excessive level.”
This amounts to a recognition that countervailing buyer power can exist not only on the wholesale side (from interconnecting operators), but also from the retail side (from retail customers), and should, in certain circumstances, be taken into account.
The full text of the letter, which contains several further items of great interest, can be
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Document SG-Greffe (2004) D/200485 concerns Market 12 (wholesale broadband access), although its title refers to “asymmetric broadband access, and broadband conveyance”. The full text of the letter can be accessed by clicking here.
For an in-depth discussion of this document, and the ongoing dynamics, also resulting from the fact that a national consultation was being held in parallel, please contact Yves Blondeel