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

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.


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
2nd 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.:

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

  • 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 Alexa VellerThis e-mail address is being protected from spam bots, you need JavaScript enabled to view it

or Yves Blondeel

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