Telecoms regulators need freedom to define relevant wholesale broadband access market when regulating competition, says BEREC

Out-Law News | 12 Jun 2014 | 10:19 am | 2 min. read

Telecoms regulators across the EU should have a "degree of flexibility" to define the relevant market for the provision of broadband services in their country when assessing competition in those markets, a regulatory body has said.

The Body of European Regulators for Electronic Communications (BEREC) broadly backed plans outlined by the European Commission to give national regulators freedom to determine the scope of a wholesale broadband market when seeking to impose controls on some operators in that market to ensure effective competition.

The European Commission is seeking to define the relevant product and service markets within the electronic communications sector so that the scope of future regulatory action in the industry is clear.

The Commission asked BEREC, which is made up of representatives from each of the national telecoms regulators in the 28 EU countries, for an opinion on its plans. It is obliged to take into account BEREC's views when finalising its proposals.

The Commission has identified four markets that could be said to exist in the electronic communications sector which should be the subject of "ex ante" regulation by national regulators. 'Ex ante' regulation concerns the regulatory obligations to be imposed on businesses that are in the defined relevant markets.

Under the Commission's plans, the four markets in the electronic communications sector subject to ex ante regulation would include the markets for 'call termination on individual public telephone networks provided at a fixed location', 'voice call termination on individual mobile networks' and for 'wholesale high-quality access provided at a fixed location'.

In addition, a fourth 'broadband' market would be divided into two sections to cover 'wholesale local access provided at a fixed location' and 'wholesale central access provided at a fixed location for mass-market products'.

BEREC said, though, that some issues needed to be clarified to help national regulators suitably define the broadband markets in which they wish to set regulatory requirements.

In particular it said that the regulators should be able to "decide on the specific delineation of the boundaries" between the wholesale local access market and the wholesale central access markets that make up the broader 'broadband' market under the Commission's proposals. BEREC said regulators should also be free to "assign the different wholesale products to specific markets on the basis of competition law principles".

BEREC also raised concerns with plans to remove two markets in the electronic communication sector that are currently subject to ex ante regulation from the scope of such regulation. The markets relate to call origination on, and access to, the public telephone network for fixed line connections.

BEREC disputed the Commission's view that there is sufficient competition from VoIP (Voice over Internet Protocol) service providers such as Skype, among others, to remove these markets from ex ante regulation by regulators.

"BEREC agrees that there is the potential for competitive pressure arising from other services or technologies on retail voice services provided over narrowband networks," it said in its opinion (25-page / 411KB PDF). "However, given that the markets in each country have different degrees of development and maturity, BEREC considers that these services or technologies cannot be seen as a direct constraint on operators of traditional public telephone services in all member states, and therefore justify deregulation of access to these services either at present or in the foreseeable future."